My client, who is also my brother, obtained court ordered child visitation entitling him to visit his small daughter for only three hours a week. This time is insufficient for him to care for his daughter, create an emotional bond between them, and build familiarity between himself and his daughter and between her and her father's family. Can my brother take the child during the summer and public holidays, and increase the number of weekly visitation hours?
Child custody and its regulation is but a means for protecting and looking after the child and maintaining its rights and affairs. The custodian's wish to waive the right to custody is not effective since protecting the child is the ultimate goal of regulating the affairs of custody.
Child custody is not an arena in which the divorced spouses may use cunning against each other at the expense of their child's interest. Rather, it is guardianship of upbringing, the aim of which is the welfare of the child, guaranteeing its interests and maintaining its affairs. Islamic law made this guardianship contingent on safeguarding the child's person and its religious and moral welfare. On the other hand, it is a good opportunity to accustom oneself to sacrifice and altruism.
The law regulating child custody, which is derived from the honorable Islamic law, aims to achieve this objective and revolves around it. If the letter of law fails to achieve the child's interests, then they become subject to the discretionary authority of the judge who is thoroughly knowledgeable of the Legislator's intents and goals.
• It is permissible for the judge to permit your brother to schedule one day a week, a suitable period during the mid-year and end of year holidays, and during the other public holidays to take his daughter as he sees fit and just.
• The judge must take into consideration the custodial mother's wish to guarantee her child's safety and at the same time preserve the father's right to raise and monitor his child's upbringing.
• The judge is authorized to adjudicate [custody and visitation rights and schedules] with a clear conscience as long as he aims to achieve the desired objective of Islamic law which is solid custodianship and optimal child welfare.
Allah Almighty knows best.