Then one of them is given priority by drawing lots. If one is given priority by it, and then he chooses the other, he is returned to him, because we have given priority to his second choice over the first; and thus, the drawing of lots, which is a substitute, is even more deserving.

Section: If the father is non-existent, or not among those qualified for custody, and another of the agnatic relatives (asabat) is present—such as a brother, a paternal uncle, or his son—he takes the place of the father. The boy is given the choice between his mother and his agnate because 'Ali (may Allah be pleased with him) gave 'Amarah al-Jarmi the choice between his mother and his paternal uncle, and because he is an agnate, he is similar to the father. Likewise, if the mother is non-existent, or not among those qualified for custody, and he is delivered to the grandmother, the boy is given the choice between her and his father, or whoever stands in his place among the agnates. If both parents are non-existent, or not among those qualified for custody, and he is delivered to a woman, such as his sister, paternal aunt, or maternal aunt, she takes the place of his mother in giving him the choice between her and his agnates, for the same reason we mentioned regarding the parents. If both parents are enslaved, and he has no relatives other than them, the Qadi said: They have no custody over him, nor is there financial support for him upon them; his support is from the public treasury (bayt al-mal), and he is delivered to whoever among the Muslims will take charge of his custody.

Section: The boy is only given the choice under two conditions: first, that they are both qualified for custody; if one of them is not qualified for custody, he is like one who is non-existent, and the other is appointed. Second, that the boy is not mentally deficient (ma'tuh); if he is mentally deficient, he remains with the mother and is not given the choice, because the mentally deficient person is in the position of a child, even if he is an adult. For this reason, the mother has a better right to the guardianship of her mentally deficient child even after he reaches maturity. If a child were given the choice and chose his father, and then lost his mental capacity, he is returned to the mother, and his choice becomes void, because he was only given the choice when he was independent; so when his independence ceased, the mother became more entitled, as she is more compassionate toward him and more capable of managing his interests, as is the case during his infancy.