What if my chosen guardian lives abroad?

Care runs down the maternal line to a fixed age, then the father takes the child. After the mother come her mother and the grandmothers above her, then the father’s mother, then sisters, then nieces and maternal aunts; al-Jaziri states the governing principle in terms — “the mothers’ side is preferred over the fathers’ side” — and only when no qualifying woman is left does care pass to the male agnates, beginning with the father. Care ends when the child no longer needs a woman: seven for a boy, and for a girl until she menstruates or reaches the age of desire, put at nine, which is the position given fatwa. There is then no choosing — the child is joined to the father. Islam is not a condition of care, so a Christian or Jewish mother keeps the child unless she is seen taking him to church or feeding him what is forbidden. Guardianship of property is a separate office and is never acquired by caring: it runs father, then the father’s wasi, then that wasi’s wasi, then the paternal grandfather and his wasis, then the judge and his appointee. The mother has none, and neither does a wasi she appoints while any of those people exist; where none exists, her appointee may only safeguard what she left and sell movables to preserve them.

Sources: al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 520, Mabahith al-hadana — the Hanafi order of entitlement, ending “in sum, the mothers’ side is preferred over the fathers’ side”, and the transfer to the male agnates only when no qualifying woman remains (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 522, Shurut al-hadana — the Hanbali order of entitlement, and the Hanafi and Shafi’i lists of conditions (the Hanafi: “Islam is not a condition”; the Shafi’i: “Islam — no non-Muslim has hadanah over a Muslim”) (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 523, Muddat al-hadana — the Shafi’i, Hanbali and Maliki lists of conditions (each including that the carer not be married to a man outside the child’s prohibited degrees; the Maliki adding “it is not a condition that the carer be a Muslim”), then the Hanafi duration (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 17, entry Hadana §§9–10 — “if the spouses separate the hadanah is the mother’s by agreement”, on the hadith “you have the better right to him so long as you do not marry”; then “each school has its own way of ordering those entitled to hadanah after the mother”, followed by the Hanafi order (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 17, Intiha’ al-hadana — the Hanafi position (Ibn ‘Abidin 2/641–642, Bada’i‘ 4/42–43): seven for a boy, nine for a girl on the position given fatwa, and then “the child is not given a choice, boy or girl; he is joined to the father” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 2, p. 318, Mabhath al-wali aw al-wasi — the Hanafi rule on guardianship of property: “the mother has no guardianship in the matter of property”, and what a wasi she appoints may and may not do; then the opening of the Shafi’i order (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 45, entry Wilaya §54, “who holds guardianship over the property of those under interdiction” — the Hanafi order (Bada’i‘ al-Sana’i‘ 5/155), which expressly excludes the mother and her appointee, and the Maliki order (al-Muntaqa li’l-Baji 6/106–107, al-Sharh al-Saghir 2/389–391) (Ministry of Awqaf and Islamic Affairs, Kuwait) — the Hanafi order, duration, conditions and property rules set out separately in al-Jaziri and in the Kuwaiti encyclopaedia, the latter footnoting Ibn ‘Abidin and the Bada’i‘.

Care runs to adulthood for a boy and to marriage for a girl, and the wasi is inside the order of care. After the mother come her mother and upwards, the full maternal aunt, the uterine maternal aunt, the mother’s aunts, and only then the father’s mother — nearer before further, and the mother’s side before the father’s — with the father coming after the paternal grandmother. Distinctively, once those relatives are exhausted the order passes to the wasi, male or female, before the child’s brother and uncles. Care over a boy runs from birth to physical maturity; over a girl it runs until she marries and the marriage is consummated. There is no choosing. Islam is not a condition of care either: a non-Muslim mother keeps the child, watched by Muslims if there is a fear she will give him wine or pork. Guardianship of property is the father’s, then his wasi’s, then that wasi’s wasi’s, then the judge’s — and the school draws the line between the two offices as sharply as it can be drawn: the person who has the orphan in care, “a grandfather, an uncle, a mother or the like”, may not deal with his property at all without an appointment, though where local custom treats the carer as a wasi that custom is given effect.

Sources: al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 521 — the Maliki order of entitlement (which places the wasi, “male or female”, inside the hadanah order) and the Shafi’i order in its three cases (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 523, Muddat al-hadana — the Shafi’i, Hanbali and Maliki lists of conditions (each including that the carer not be married to a man outside the child’s prohibited degrees; the Maliki adding “it is not a condition that the carer be a Muslim”), then the Hanafi duration (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 524, Muddat al-hadana — the Maliki, Shafi’i and Hanbali durations set out one after another (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 17, Intiha’ al-hadana — the Maliki position (al-Dasuqi 2/526: to bulugh for a boy, to marriage and its consummation for a girl) and the Shafi’i position (hadanah runs to tamyiz, then the child chooses and may change) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 2, p. 319 — the Shafi’i rule that the mother has no guardianship “unless the father, the grandfather or the judge installs her”; the Maliki order, with “the one who has the orphan in her care — grandfather, uncle, mother and the like — may not deal with his property without an appointment”; and the Hanbali order (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 45, entry Wilaya §54, “who holds guardianship over the property of those under interdiction” — the Hanafi order (Bada’i‘ al-Sana’i‘ 5/155), which expressly excludes the mother and her appointee, and the Maliki order (al-Muntaqa li’l-Baji 6/106–107, al-Sharh al-Saghir 2/389–391) (Ministry of Awqaf and Islamic Affairs, Kuwait) — the Maliki order, duration, conditions and property rules set out separately in al-Jaziri and in the Kuwaiti encyclopaedia, the latter footnoting al-Dasuqi, al-Muntaqa and al-Sharh al-Saghir.

No fixed term at all: once the child can tell the parents apart, the child chooses. The mother comes before the father, then her mothers — but only those who would inherit — then the father, then his mothers; where men and women are both in the field, the nearest woman is preferred, then the nearest man. Care has no set duration: when the child reaches discernment, put at seven or eight, he is offered the choice between father and mother, and if he changes his mind he is moved again, as often as he changes it — unless he changes so often that it shows he cannot really discriminate, in which case he stays with the mother. If he refuses to choose, the mother has him. Islam is a condition here: no unbeliever may have care of a Muslim child. Guardianship of property runs father, then paternal grandfather, then the wasi of whichever of the two died last, then the judge or his trustee. On the sounder view the mother does not hold it, on the analogy of the marriage guardianship; a recognised second view gives it to her after the father and grandfather, ahead of their appointee, “because her compassion is complete”. Either way she may be installed in it by the father, the grandfather or the judge, and if she is fit she is preferred to a stranger.

Sources: al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 521 — the Maliki order of entitlement (which places the wasi, “male or female”, inside the hadanah order) and the Shafi’i order in its three cases (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 522, Shurut al-hadana — the Hanbali order of entitlement, and the Hanafi and Shafi’i lists of conditions (the Hanafi: “Islam is not a condition”; the Shafi’i: “Islam — no non-Muslim has hadanah over a Muslim”) (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 524, Muddat al-hadana — the Maliki, Shafi’i and Hanbali durations set out one after another (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 17, Intiha’ al-hadana — the Maliki position (al-Dasuqi 2/526: to bulugh for a boy, to marriage and its consummation for a girl) and the Shafi’i position (hadanah runs to tamyiz, then the child chooses and may change) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 2, p. 319 — the Shafi’i rule that the mother has no guardianship “unless the father, the grandfather or the judge installs her”; the Maliki order, with “the one who has the orphan in her care — grandfather, uncle, mother and the like — may not deal with his property without an appointment”; and the Hanbali order (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 45, entry Wilaya §54 (cont.) — the Shafi’i order (Mughni al-Muhtaj 2/173, Tuhfat al-Muhtaj 5/179), with “the mother does not hold it, on the sounder view” and the recognised second view that she does; and the Hanbali order (Sharh Muntaha al-Iradat 2/291, Kashshaf al-Qina‘ 3/334): “neither the grandfather nor the mother nor the remaining agnates hold it” (Ministry of Awqaf and Islamic Affairs, Kuwait) — the Shafi’i order, duration, conditions and property rules set out separately in al-Jaziri and in the Kuwaiti encyclopaedia, the latter footnoting Mughni al-Muhtaj, Nihayat al-Muhtaj and Tuhfat al-Muhtaj.

Seven years for both children, and then it divides by sex. After the mother come her mothers, then the father, then his mothers, then the grandfather and his mothers, then full, uterine and paternal sisters, then maternal aunts, then paternal aunts. At seven, a boy whose parents disagree is given the choice by the judge and lives with whichever he picks — and may change again, indefinitely — though the choice is overridden where it is plainly a choice of the laxer parent. A girl at seven goes to the father “without argument”, to maturity and then to her wedding, even if the mother offers to keep her for nothing, because the object of care is safekeeping and the father is the better keeper. Islam is a condition: Ibn Qudama’s ground for it is precisely that care is a guardianship, “so it is not established for an unbeliever over a Muslim, like the guardianship of marriage and of property”. Guardianship of property runs father, then the wasi the father appointed, then the judge, then a trustee standing in the judge’s place. Neither the grandfather nor the mother nor the remaining agnates hold it.

Sources: al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 522, Shurut al-hadana — the Hanbali order of entitlement, and the Hanafi and Shafi’i lists of conditions (the Hanafi: “Islam is not a condition”; the Shafi’i: “Islam — no non-Muslim has hadanah over a Muslim”) (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 4, p. 524, Muddat al-hadana — the Maliki, Shafi’i and Hanbali durations set out one after another (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 17, Intiha’ al-hadana — the Hanbali position: the boy stays with his carer to seven, and if the parents then disagree “the judge gives him the choice between them” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mughni, Kitab al-Nafaqat, mas’ala 6535 (vol. 8, p. 238) — “the mother is the most entitled of people to his care… and this is the view of Malik, al-Shafi’i, … and the people of ra’y, and we know of no one who differed from them”; and, on the same page, “it is a wilaya, so it is not established for an unbeliever over a Muslim” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, mas’ala 6538 (vol. 8, p. 239) — “when the boy reaches seven he is given the choice between his parents”: the Hanbali and Shafi’i rule, against which “Malik and Abu Hanifa said: he is not given a choice”, each with his own substitute rule (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Fiqh ‘ala al-Madhahib al-Arba‘a, vol. 2, p. 319 — the Shafi’i rule that the mother has no guardianship “unless the father, the grandfather or the judge installs her”; the Maliki order, with “the one who has the orphan in her care — grandfather, uncle, mother and the like — may not deal with his property without an appointment”; and the Hanbali order (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya, vol. 45, entry Wilaya §54 (cont.) — the Shafi’i order (Mughni al-Muhtaj 2/173, Tuhfat al-Muhtaj 5/179), with “the mother does not hold it, on the sounder view” and the recognised second view that she does; and the Hanbali order (Sharh Muntaha al-Iradat 2/291, Kashshaf al-Qina‘ 3/334): “neither the grandfather nor the mother nor the remaining agnates hold it” (Ministry of Awqaf and Islamic Affairs, Kuwait) — the Hanbali order, duration and property rules set out separately in al-Jaziri and in the Kuwaiti encyclopaedia (footnoting Sharh Muntaha al-Iradat and Kashshaf al-Qina‘), with Ibn Qudama read directly for the seven-year choice and the ground of the Islam condition.