Question: I am a Muslim man married to a Muslim woman. Two years ago, the court ruled that I could divorce my wife and give her the custody of my children, a daughter and two sons. Six months ago, I knew that my ex-wife married to another man.
Do I have the right, according to Islamic law, to file a lawsuit and ask the court to drop custody? Do I have the legal right to demand a refund of the amounts in lieu of custody that I paid to my ex-wife from the date of her marriage to another man, and what are the reasons for the loss of custody?
Answer: According to what is stipulated in Articles 144/A, 146, and 152/3 of Federal Law No. 28 of 2005 regarding personal status, as a general rule, the mother’s new marriage is a reason to lose custody, unless the court decides otherwise for the interest of the children, and that the father takes over the mother in the custody of his young children, and that if the person who is entitled to custody remains silent about claiming it for a period of six months without an excuse, his right to custody is forfeited.
The burden of proving that the person who is entitled to custody is aware of the marriage of the custodian falls on the custodian herself. Moreover, assessing the interest of the child to remain with his mom despite her marriage, as well as assessing your knowledge about her marriage, and assessing your excuse for your silence about requesting custody, all fall on the court itself.
This means that you can file the case to drop the custody with recovering the amounts paid from the date of her marriage, if you are sure that the mother will not be able to prove that you had known about her marriage six months ago.
You have also to take into consideration that her marriage will not be a reason on its own to lose the custody of the children in case the interest of the children lies with staying with her, as per what is mentioned above.
The fosterer’s right to fosterage is forfeited as per Article 152 in the following instances: Derogation to one of the conditions stated in Articles 143 and 144; in case the fosterer elects a domicile in another city, thus making it difficult for the tutor to attend to his duties; should the person entitled to fosterage keep silent and do not claim this right for a period of six months without excuse; and should the new fosterer live with the one whose fosterage has been forfeited for a reason other than physical disability.
Moreover, as per Article 156, the right of women to fosterage of a child shall end upon his reaching the age of 11 years, if male, and 13 years, if female, unless the court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest.
