If you are a parent going through a divorce, you know that a large component of your case has related to your child and what sort of custody provisions will be included in your Final Decree of Divorce. Money issues aside, child custody disagreements are the likeliest cause of animosity and disagreement in a divorce. If you and your spouse cannot agree on issues related to your child, a judge can intercede and apply Texas laws on child custody to your situation and its circumstances.
For most people in Texas, going through a divorce in our civil courts is the only step you will need to take to dissolve your marriage and have orders set forth regarding your child. However, if you are also Muslim, you would need to take additional steps within the structure of your Islamic faith to become divorced from your spouse in the eyes of God and your religious community.
Today’s blog post from the Law Office of Bryan Fagan, PLLC, will discuss this topic in detail. Specifically, we will begin by going over child custody rights in a divorce as prescribed by Islam's religious texts.
How does Islam treat child custody from the vantage point of a mother?
Within Islamic law, there is a doctrine known as Hadana that instructs Muslims how to deal with issues regarding a child's physical custody- what we in Texas may call possession of a child. Unlike in American civil law, this doctrine automatically grants physical custody of a child to the father. However, the age at which this is done varies depending on what country you in around the world. In the United States, Texas included, the law does not distinguish or give preference to a parent based on their sex when it comes to possession/child custody issues.
Let’s examine specifically what the doctrine of Hadana has to say regarding the possession of a child. For starters, if a child is born out of marriage, then if you are the child’s mother, you would be able to have physical custody of your child if he is a male up to the child’s seventh birthday.
On the other hand, if your child is a girl, you would be entitled to your daughter's physical custody until the age of puberty. Typically if your ex-husband were not able to take physical custody of your child at either age seven/the age of puberty, his relatives would be able to step in and take possession in his absence.
As the natural guardian of your child, your ex-husband holds all the cards in terms of physical custody of your child. He would have the sole right to determine whether your child can travel internationally by obtaining a passport, where he or she would go to school, and other issues like this. In American divorces, parents will typically share in these rights and, in many cases, have an equal say in the rights and duties of parenting a child after divorce.
You, as the mother of the child, can lose physical custody of the child before the aforementioned ages in a few different ways. For starters, if it is determined by an Imam (a religious leader within Islam) that you are untrustworthy as a parent, then your physical custody rights to your child could be stripped.
Secondly, if it is determined that you are not competent to promote the religious faith of your child or to encourage their active following of Islam, then your physical custody rights may be in jeopardy. Finally, you may lose custody rights to your child if you remarry from outside of your husband’s family during this time period before your child turns the age at which time he or she would go to live with their father.
Can an Islamic divorce agreement be enforced in American civil law courts?
Any agreement made between spouses in conjunction with a divorce in the Islamic faith is construed under general contract law by American civil law courts rather than as a religious document. As discussed in yesterday’s blog post, courts often interpret these divorce agreements as akin to an American prenuptial agreement.
What we see happening with some frequency is that a husband who has agreed to a division of property and child custody within an Islamic divorce agreement will then attempt to have the divorce agreement upheld by a family law court. This is since his responsibilities to pay money for support are much less in a Muslim divorce agreement that he would be responsible for under an American family law order.
If the agreement was signed in another country, the husband could hire an attorney and present an argument that the country's law where the agreement was signed should apply in this case. On the other hand, if the marriage was short, the wife will often present these arguments because we would stand to retain from marriage would be far greater in an Islamic divorce agreement than under a civil court order.
Muslim wives can also present an argument that only is she entitled to her share of assets and property under a Muslim divorce agreement but can also seek a separate return under civil law provisions.
An example to illustrate the points we have raised thus far
Instead of merely reciting what the law is in Islam and how it could be applied by courts here in Texas and the United States as a whole, let’s use a hypothetical example to illustrate our points.
Suppose that you and your husband agreed to a payment of $15,000 from your husband to you as a part of your divorce within an Islamic divorce agreement. After your husband failed to pay you the agreed-to amount, you filed an enforcement suit in a Harris County family law court seeking to have the court enforce the Islamic divorce agreement. Your court could uphold the terms of the agreement based on contract law alone and not on any theories based on Islam.
How can you ensure that this is an outcome that would occur in your situation? While I can’t tell you that there are surefire ways to do so, you could always videotape the agreement being signed to show that the agreement was freely and voluntarily entered into. These are general principles that aid in the enforceability of a contract in United States civil law. Thus, no analysis would be needed for your divorce agreement under the religious law of Islam.
If you discuss the terms of your Islamic divorce agreement with your spouse and negotiate with one another in good faith, the terms you come up with for that agreement will likely be held by a court to be in good faith and generally will be enforceable. If any payments of money from your husband to you are deemed by a court to be unfair, out of line with civil law, or are agreed to be the only remedy for you available, it is more unlikely for your agreement to be enforced the court. If it is apparent that the Islamic marital agreement is the only remedy available to you, then civil laws will be applied to allow you an opportunity to recover an equitable amount of money and/or property.
Questions on Islamic divorce and its effect on a civil divorce in Texas? Contact the Law Office of Bryan Fagan, PLLC
Thank you for your interest in the topic of Islamic divorce. I hope that you have been able to learn something over the past few days. While I am not Muslim, I did my best to research this topic as thoroughly as I could to provide you all with helpful information.
If you have any questions about this subject or any other family law, please do not hesitate to contact our office. We offer free of charge consultations six days a week with a licensed family law attorney.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “Child Custody E-Book”
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Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding child custody, it's important to speak with one of our Houston, TX child custody lawyers right away to protect your rights.
Our child custody lawyers in Houston, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles child custody cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.