In most cases, guardianship of the children remains with the father or other male relative, and mothers who care and provide for their children on their own must decide how to navigate the guardianship legalities.

Custody & Guardianship of Children after Divorce

 
 
When resource persons who have children were contemplating divorce, they had to consider how their children would be cared for and supported, and what their role would be in their children’s lives. Mothers are not guaranteed custody rights—they often do not get custody when challenged by fathers or have to give up custody rights in order to get a divorce—and can lose custody rights on several grounds, including remarriage. Most Muslim family laws do not recognize mothers as guardians. In contrast, fathers almost never lose their right of guardianship, even if they do not provide for or visit their children.
 
Although fathers or male guardians are supposed to protect and provide for their wards under the qiwamah and wilayah formulations, many of the fathers in these stories were irresponsible about providing maintenance for their children during marriage and after divorce. Thus, mothers had to weigh whether they could gain custody of their children if they left their unhappy or unsafe marriages and how they could support their children if they were able to obtain custody.
 
 

Mothers reported battling to gain custody of their children after divorce, often giving up other rights or making sacrifices in order to do so.

 
After Naeema from Canada and her husband divorced through his pronouncement of talaq, she arranged to get a civil divorce—but custody and support payments became an issue. Eventually, he said it was too complicated to use lawyers, and they should work it out themselves. He promised that he would make support payments. But he never paid a penny and never met his obligation towards their daughter.
 
Amalia from Indonesia did not get post-divorce nafaqah for her children because the judge considered that her husband was jobless and was not able to provide the nafaqah.
 
 

In some cases, mothers are not able to obtain custody, such as when the fathers decide they want to keep the child or when the mothers remarry. This can force them to make choices between their best interests and keeping their children with them.

 
Murja from Nigeria experienced problems relating to custody first as a child, when her young mother was not allowed to take her following her parents’ divorce, and then as a mother. Murja was married off at 14 but was able to divorce her abusive husband a few years later because of the intervention of her courageous aunt. After her divorce, she had custody of her young daughter. She recounts:

One day [the father] came to the house under the pretext of seeing see our daughter. He just picked her up and took her home and handed her to his mother...But my aunt went straight after him to the house and demanded my daughter back, threatening to take them to court for kidnapping a baby less than seven years old from her mother.

So Murja was able to keep her daughter for a few more years. When she remarried, however, she was forced by her uncle to send her five-year-old daughter back to the uncle’s house.
 
Nurul from Indonesia had a child with her first husband. They separated, and he went to Malaysia to work, telling her she and her parents should care for the child. But this was short-lived. Nurul narrates:

I didn’t feel anything about his going away because I felt that I was already divorced, so I did not care if he left us. Until, one day, [my husband’s] family came and forcefully took my son from me. I was weaving a cloth and he was asleep in a cradle next to me when they came and took him, saying that he was their right, especially because he was a baby boy...I have not seen my son ever since and have lived separately from him to this day.

Samina, who is from India but now lives in Canada, adopted a child with her first husband. When they divorced, he gave her the option of keeping custody. She chose to do so and moved with her daughter to Dubai. Then she got an opportunity to do a degree in Canada. She asked her husband if he would take care of their daughter while she was away. He agreed but shortly after she left he filed a custody suit, saying she had abandoned their daughter. Samina decided to go back to India to fight for her daughter, losing approximately CAD30,000 that she had already paid in tuition fees. Once she returned, however, she found out that her daughter was attached to her ex-husband, and she realized that he could give her a home and a father and a mother (since he had remarried by this time). Samina decided to give up her fight for custody of her child.
 
Shafira from Indonesia finally decided to divorce her husband after years of living under his control and abuse. She has custody of their children but her ex-husband has threatened to force her out of one of their family houses and take the children if she remarries. She has met a man who loves and cares for her but she is reluctant to accept his marriage proposal because she would have to give up her children.
 
 

Many women who do have custody of their children do not receive child support from the fathers, and thus work long hours and in difficult jobs in order to provide for themselves and their children.

 
Sultana from Bangladesh was initially not given custody of her daughter. But Sultana soon decided to bring her daughter home, and the father did not object because child care was difficult at his house. The father has not paid for child care or provided any support, and Sultana did not push for it because she did not want to owe him anything or rely on him. Her family did not support the divorce and did not want to take on the burden of feeding two extra people. So Sultana has worked to pay for all of her and her daughter’s expenses, first in the fields processing rice, then by migrating to Dhaka to do domestic work. Her daughter has now earned a BA and recently got married. Sultana is clear that she is the guardian of her daughter, as she bore all of the costs and made all of the decisions concerning her. She says:

I have done both a father’s and a mother’s job.

Mimi from Malaysia chose to divorce after her husband married a second wife, and she moved from her husband’s house to a rental. She was not given maintenance afterwards even though her husband was wealthy; she and her children survived through her hard work:

It was a big move for all of us. Before, we had a comfortable life. I was used to a high standard of living, and then suddenly—pap!—I fell right to the ground. It was also a hard transition for my children. They had a happy life before; they got whatever they wanted, and then suddenly we were struggling. My eldest was 15 at the time and the youngest was only nine. At the time, my husband did not provide us with anything. I brought up the children on my own with my small salary. I told my kids, if you want to live with mama, this is the life. If you don’t want this, you can live with your father. They all wanted to stay with me.
 
You know, when we were with my ex-husband, we had a luxury car and a driver to drive us around. After the divorce, my children and I had to take the public bus. To make ends meet, I started to do some part-time work selling cosmetics and household products. Life was a struggle then.

 

In most cases, guardianship of the children remains with the father or other male relative, and mothers who care and provide for their children on their own must decide how to navigate the guardianship legalities.

 
Nurul from Indonesia who previously lost her son when her first husband’s family took him from her, faced guardianship issues following her third marriage. Nurul’s third husband abandoned her while they and her parents were on umrah (pilgrimage) in Saudi Arabia and she was eight months pregnant. She gave birth to her daughter in Saudi Arabia, and eventually she and her parents found a way out of the country and back to Indonesia. Nurul has been working to raise and support the child and her parents. Her husband never cared for the child, and she found out he had died when her daughter was nine years old. However, her daughter still does not have a birth certificate, and Nurul is reluctant to put her husband’s name as the father because she does not want his family to serve as her daughter’s guardian when she marries. Nurul’s brother has been helping to care for the girl, and she feels he is serving the role as guardian.
 
Asih, also from Indonesia, divorced after a difficult marriage and was able to get custody of her two children. Her husband had been ordered to provide alimony but has not done so, so Asih is providing for herself and her children on her own. Asih does not want her husband to be her daughter’s guardian when she gets older, as he has always favoured their son and not cared for their daughter, and because she feels he does not deserve to be her guardian. She feels that a guardian needs to be responsible, protect his family, provide for his family and put his best efforts into working hard so they can have a simple life. Asih is the one taking care of and sacrificing for the child, and she does not want the father to be recognized as the wali.