Custodial Issues Arising upon the Conversion of One Spouse to Islam

Abstract

The issue is, if one of the parents of a child converts to Islam, is that parent automatically entitled to child custody over and above the non-Muslim parent? From the Islamic perspective, Muslim jurists disagree on this issue. In a hadith recorded by Abu Dawud (#2244): Abdul Hamid bin Ja’far reported from his father on the authority of his grandfather Rafi’ bin Sinan, that he (Rafi’ bin Sinan) embraced Islam, but his wife refused to do so. So she went to the Prophet and said: “She is my daughter, and she is weaned, or almost weaned.” And Rafi’ said: “She is my daughter.” So the Prophet told him, “Sit on this side,” and told her, “Sit on that side”, and then placed the girl between them. He then said to both of them. “Call her”. The girl went towards her mother, but the Prophet said: “O Allah! Guide her”, so she went to her father, and took her.