Relatives' right to see a child living with its custodial parent
What is the ruling for relatives' right (paternal grandparents, uncles and aunts) to see their granddaughter and niece who is living with her custodial mother at her maternal grandparents' residence?
Paragraph 2 of Article 20 of Decree Law no. 25 (1929) amended by Law no. 100 (1985) states: "Both parents are entitled to child visitation. Grandparents enjoy the same right in the absence of the parents." The phrase 'in the absence of the parents' denotes either their death or residence in a country other than the child's country of residence.
We recommend that visitation rights be granted to paternal grandparents (if the child is in its mother's custody or in the custody of a female maternal relative) as well as to paternal uncles and aunts even if the father is alive or lives in the same country as the child's custodian. This is because a paternal grandfather is considered a father both in the linguistic sense and in Islamic law — he is an ancestor who occupies the same status as a father in matters concerning inheritance, expenditure, guardianship, and the obligation to pay blood-money. Moreover, the child carries his name and he is a reason for its coming into existence. For this reason, the Qur`an refers to a grandfather as 'father' as in the verse,As for the wall, it belonged to two youths, orphans, in the town; there was, beneath it, a buried treasure, to which they were entitled; their father had been a righteous man. [Al-Kahf: 82]
Al-Baidawi said, "It is said that [the 'father' referred to in the above verse] is the orphans' paternal grandfather, seven times removed." An uncle likewise occupies the same status as a father as expressed in the Qur`an by Jacob's sons,We shall worship thy God and the God of thy fathers, of Abraham, Isma'il, and Isaac. [Al-Baqarah: 133]
It is known that Abraham was Jacob's grandfather (peace be upon them) though the Qur`an mentions him as 'father' and Isma'il (peace be upon him) was Jacob's paternal uncle though the Qur`an refers to him as Jacob's 'father'. Abu Huraira narrated that the Messenger of Allah said, "O 'Umar! Do you know that that a man's uncle occupies the same status as his father?" [recorded by Muslim and others]. Allah the Almighty says of Abraham's uncle,Lo! Abraham said to his father Azar. [Al-An'am: 74]
Abraham renounced his uncle when it later became apparent to him that he was an enemy of Allah the Almighty. In his last days, Abraham supplicated for his own father, who was a believer, and said,"O our Lord! Cover (us) with Thy forgiveness—me, my parents, and (all) believers, on the Day that the Reckoning will be established!"[Ibrahim: 41]
The same argument applies to a mother's relatives if the child is in its father's custody or is later removed to its father's guardianship after reaching the legal age for leaving the guardianship of females. This is the ruling issued by the Court of Alexandria in case no. 335 for the year 1931: "Do the child's relatives enjoy the same rights as its mother concerning visitation? There is no explicit text on this in the books of Islamic jurisprudence except for what was mentioned in the book Fatawa Al-Mahdiyyah in the chapter on custody. It states, 'A man took custody of his daughter after she reached the legal age for joining him and placed her with her paternal brother. Her mother and maternal aunt who was the child's custodian after the mother remarried, wish to have access to the child once a week or once a month. So do you consent to this request and is the child's brother entitled to prevent them from having access to the child?' The answer was, 'The mother and maternal aunt are not to be prevented from visiting the child. The child's brother is not entitled to prevent them from visitations without a legal precept ...'
This ruling clarifies the necessity of habituating the child to observing paternal and maternal kinship rights and preserving them. It also shows the necessity of preserving the rights of adult relatives concerning visitations as well as establishing justice and equity in granting the same rights to the relatives of the non-custodial parent as those granted to the relatives of the custodial parent. This is the great design of the Law Maker, Allah the Almighty, and a requisite of Islamic law.
Allah the Almighty knows best.