Chapter: Who is more entitled to the guardianship (kafalah) of a child

Guardianship and nurturing (hadanah) of a child is obligatory, because he will perish if left alone; thus, it is mandatory to preserve him from ruin, just as it is mandatory to provide maintenance for him and to save him from perils. A right pertains to his relatives through this, [because it contains] authority over the child and accompanying him, so the right is attached to it, like the guardianship of a foundling. Guardianship is not established for a child, nor for one who is mentally deficient (ma'tuh), because he is not capable of it, and he is in need of someone to take care of him, so how could he take care of another! It is also not established for a corrupt person (fasiq), because he cannot be trusted in performing the obligatory duties of guardianship, and there is no benefit for the child in his guardianship, as he would be raised upon his path; nor for a slave (raqiq). This is the view of 'Ata', al-Thawri, al-Shafi'i, and the People of Opinion (Ashab al-Ra'y). Malik said regarding a free man who has a child from a slave woman: The mother is more entitled to him, unless she is sold and transferred, then the father becomes more entitled to him, because she is an affectionate mother, so she resembles a free woman. Our position is that she does not possess the benefits by which guardianship is achieved because she is owned by her master, so she has no guardianship, just as if she were sold and moved. Furthermore, it is not established for an unbeliever (kafir) over a Muslim. This is the view of Malik, al-Shafi'i, Sawwar, and al-'Anbari. Ibn al-Qasim, Abu Thawr, and the People of Opinion said: It is established for him, based on what was narrated from 'Abd al-Hamid ibn Ja'far, from his father, from his grandfather Rafi' ibn Sinan, that he embraced Islam and his wife refused to embrace Islam. She came to the Prophet (peace and blessings of Allah be upon him) and said: "My daughter, she is weaned, or close to it." Rafi' said: "My daughter." The Prophet (peace and blessings of Allah be upon him) said: "Sit on one side," and he said to her: "Sit on the other side," and said: "Both of you call her."