Definition of custody
The term custody in Arabic is derived from the meaning of the lap, which is the upper side of the thighs of a seated person. The Arabs use the term to describe the bird incubating the egg by embracing the egg and covering it with its wing. It is as if the custodian of the child keeps him so close to protect him and keep him safe. In Islam, the term means nurturing the child by the one who has the right to custody, ensuring the child has accommodation and food, clothing, hygiene – to name a few.

2. The ruling of custody
The four Madhabs are in agreement that child custody is obligatory.

3. The wisdom of legitimacy of custody
The custody is legislated to protect and preserve the one under custody. For this reason, Islam has given the mother the priority to be the custodian of the child during his young age because the child needs to be carried, nurtured and breastfed, let alone the patience of the caretaker, which are tasks that only women can do it perfectly. However, after the child reaches an age in which he can express himself and no longer need to be carried or held or looked after his needs, the right to custody is transferred to the father.

4. The right of the mother to custody and forcing her to accept the custody of the child.
a. The mother is the first person entitled to custody: The scholars are in consensus that in the event where two spouses separate, and they happen to have a child from this marriage, the mother has priority to the custody of the child [260]    If the child reaches seven years of age, he is given a choice between his father and his mother. See: Topic: Giving choice to the boy and the girl regarding who to take their custody. unless she marries another man. The consensus on that is transmitted by Ibn al-Munthir, al-Khattaabee, Ibn Abd al-Barr, Ibn Qudaamah, Ibn al-Qayyim, Ibn al-Hamaam, and Burhaan al-Deen Ibn Muflih.

b. The order of the child’s custodians: The four Madhabs are in consensus [261] They differed on the order of the custodians to be after the mother of the mother: The Hanafi Madhab holds the view that the order of custodians is as follows: the mother of the father, then follows the full sister, then the maternal half-sister, then the paternal half-sister, then maternal aunts, then comes the paternal aunts. According to the Maliki Madhab, the order is as follows: the maternal grandmother comes first, then the maternal aunt, then her maternal aunt, then the paternal grandmother, then the father, then the sister, then the paternal aunt, then the daughter of the brother or sister, then the guardian, then the brother, then the son of the brother, then the paternal uncle, then the paternal cousin. And according to the Shafi’i Madhab, the order is as follows: her mothers who have female children come first, then, the mother of the father, then her mothers who have female children, then the mother of the parental grandfather, then her mothers who have female children, then the mother of her parental great grandfather, then her mothers who have female children, then the sister, then the maternal aunt, then the daughter of the brother or the sister, then the paternal aunts. According to the Hanbali Madhab, the order is as follows: the father comes first, then the mother of the father, then the grandfather, then the mother of the grandfather, then the sisters, then the maternal aunts, then the paternal aunts.   Ibn Uthaymeen said: “The scholars differed concerning the sequence of (who is entitled to) custody and there are several opinions, but none of them has any reliable basis. Hence Shaykh al-Islam (may Allah have mercy on him) was of the view that custody should go to the one who is most closely related, whether that is the father or mother, or on the father’s side or on the mother’s side; if they are equal, then priority should be given to the female. If there are two males or two females then lots may be drawn, otherwise the father’s side takes precedence.  This point is summarized in the following couplets: “Precedence is given to the closest, then the female, But if they were males or females,  draw between the ones on the same side and give precedence to those who are paternal if they belong to different sides”. The explanation of the couplets is as follows:  “Precedence is given to the closest, then the female” means: if they were on the same level, the female is given precedence. “But if they were males or females”  i.e.: if the custodians were all males or all of them were females. “draw between the ones on the same side” i.e., if they were on one side, then draw between them to choose one of them, but if they were on both sides. “and give precedence to those who are paternal if they belong to different sides” This is the rule that Ibn Al-Qayyim , may Allah have mercy on him, favored, and said: It is the most correct ones. See Al-Sharh al-Mumti’ (1/535, 536) and Zaad al-Ma’aad by Ibn al-Qayyim (5/403). that in the event of where the child is young, the priority is given to the mother and then to the mother’s mother.
c. The right to custody after its termination: The majority of scholars [262]    There is a difference among the majority of scholars about the time of her right to return to his custody in the event of where the divorce is revocable; they differed on whether her right is restored once the divorce is issued or when the waiting period ends. The Maliki Madhab is of the view that the custody should return to the custodian, if custody is removed due to a valid emergency. However, if the excuse is not deemed emergent or in the event of where there is no excuse, the right to custody does not return to the custodian. hold the view that if the right to the child’s custody is terminated but afterwards the reasons for which the custody was terminated no longer exist, the person’s right to custody is restored. [263]    The example of this is the case when the right of mother to custody is forfeited because of marrying another man, and the right is restored when she is divorced, or the case when it is forfeited due to the insanity or apostasy of the custodian, and then it returns after the emerging cause ends.   This is the view of the Hanafi, Shafi’i, and Hanbali Madhabs.
d. Forcing the mother to accept the child’s custody: The four Madhabs agree that the mother may not be forced to take the child’s custody if she relinquishes it unless there is no one other than her to be a custodian.