Wants to foster her dead sister's son against his father's will
24-3-2009 | IslamWeb
Question:
Assalamo Alaikum.
My question relates to the upbringing of my nephew who is my sisters child. In October my sister passed away, her wish was that I look after her child, my sisters husband is aware of this. I was told that in islam in these circumstances the best people to look after the child is the maternal aunt or the maternal grandmother, can you please shed some light on this? I now wish to apply for legal custody but my brother in law is not happy with this. the reason I am doing this is because if i do not then due to the laws of this country i will not even be able to register the child for a doctor or school etc. I do not wish to adopt and I have assured my brother in law that the child will always be aware who his real family are. my other issue with the upbringing of the child is that my brother in law who himself is a good man, has a family that i believe are incapable of giving my nephew a good upbringing as they have strayed from Islam and are leading very westernised lives without rules or any sort of discipline. What can I do? Is it ok for me to apply for legal custody?
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad 
is His slave and Messenger.
The jurists 
stated the order of the relatives who have the right of fostering the child after the mother; for more benefit in this regard, please refer to Fatwa 117955.
The maternal aunt is one of them. Therefore, if there is no person who comes in priority over you in fostering your nephew, then you have the right to foster him if there is no obstacle which prevents you from this right, like if you are married for instance. However, if it is someone else who has the right to foster him and renounces this right for you, then this is permissible.
To conclude, we advise you to agree with the father of the child and do what is beneficial for the latter. The fostering is for doing what is beneficial for the fostered child and repel the harm from him. If we presume that it is the father who has the right of fostering, it is not permissible for him to keep this child in an environment that may spoil him, whether his family or else. It is for this reason that some jurists conditioned when the fostering is transferred to the father or other male relatives, that he should have a female with him who would be suitable as a fosterer like a wife, or a female Mahram who is appropriate for fostering.
Allaah Knows best.