A child refusing to be with his mother after her second marriage
23-12-2006 | IslamWeb
Question:
Assalamualaikum, My brother-in-law has completed his divorced. His former wife insisted to have a divorced. He was married with 2 children (9 year old and 5 year old) to which the shariah court has given rights to take care to the mother to which he has no objection. Recently the former wife has re-married to a divorcee with 2 children of which is also under his care. Now the situation is that the elder child (9 year old) of my brother in law is refusing to stay with the mother on the grounds that the step father has not treated him well neither consenting to the new mother's marriage. He is now under the care of my brother in law and refuse to go back to his mom's house. Several occasions the mother brought with them the police in order to take the boy back. This matter is brought to the syariah high court to which the ruling is that the boy should be with the mother and should he still refuse may be advise until such time he wishes be back to his mother. How does Islam sees into this matter and please advise in reference to hadith and verses in the Quraan. Assalamualaikum Ibrahim Jusoh
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. We ask Allaah to exalt his mention as well as that of his family and all his companions.
On one hand, the jurists 
stated that the mother loses her right of fostering her children once she remarries another man, and the fostering is transferred thereupon to the relatives who are more deserving of their fostering.
On the other hand, according to the most preponderant opinion of the scholars when a child reaches the age of seven; he is given the choice to choose between staying with his mother or his father. Then the child goes with whomever he had chosen, unless there is an impediment like the mother remarrying or the father being a dissolute person. For more benefit, please refer to Fatwa 84618. This is in general, but as regards the case in question, since the matter was taken to an Islamic court, then the court is more aware of its circumstances. However, if the father or anyone else does not fully agree with the court ruling, he may submit his inquiries to the court or any higher body/authority if any about the ruling (so that they would justify it).
Allaah Knows best.