because the benefit of the child with him is greater than the aspect through which benefit is obtained by wealth, and perhaps he will adopt his character traits and learn from his generosity. The fourth scenario is that they are equal in being free, upright, Muslim residents, in which case they are equal in this regard. If one of them is pleased to waive his right and hand him over to his companion, it is permissible, because the right belongs to him, so he is not prevented from favoring the other with it. If they dispute, lots are drawn between them, due to the saying of Allah the Almighty: "And you were not with them when they threw their pens [to decide] which of them should be responsible for Maryam." And because it is impossible for him to be with both of them, as he cannot be with both of them in one state. If they propose a turn-taking arrangement, such that he is placed with each one for a day or more than that, it would harm the child, because his diet, comfort, and familiarity would be inconsistent. It is not possible to hand him to one of them over the other without drawing lots, because their right is equal, and designating one of them by arbitrary choice is not permissible, so drawing lots between them becomes necessary, just as lots are drawn between partners in designating shares during division, between wives in starting the turn of cohabitation, and between slaves in manumission. The man and the woman are equal; the woman is not prioritized here as she is prioritized in the custody of her child over his father, because she is prioritized for her compassion towards her child and her personal undertaking of his custody, whereas the father handles custody through a stranger, so the [mother is more entitled and beneficial] for him and kinder. As for here, she is a stranger to the foundling, and the man handles custody through a stranger, so they are equal. The school of al-Shafi'i in this entire section is according to what we have mentioned. If one of them is of obscure character and the other is of apparent uprightness, it is possible that the upright person is prioritized, because the obstacle to taking custody is absent in his case without doubt, while the matter is doubtful regarding the other, so the benefit to the child in handing him to the former is more complete. It is also possible that they are equal, because the possibility of the existence of an obstacle does not affect the prohibition, so it does not affect the prioritization.

Section: If they both see him and one of them outruns the other and takes him, or places his hand upon him, he is more entitled to him, due to the Prophet's (peace and blessings of Allah be upon him) saying: "Whoever reaches first that which no Muslim has reached first, he is [more entitled to it]." If one of them sees him before his companion, but the other outruns him in taking him, the one who outruns in taking him is more entitled; because pick-up is the taking, not the seeing. If one of them says to his companion: "Hand him over to me," and the other takes him, we look [to his intention]. If he intended to take him for himself, he is more entitled, just as if the other had not ordered him to hand him over. If he intended to hand him over, then he belongs to the one who gave the order, because he did so with the intention of being a deputy on his behalf, so it is similar to if he had been commissioned by him to acquire something permissible.