The girl leaned towards her mother, so the Prophet (peace and blessings of Allah be upon him) said: "O Allah, guide her." Then she leaned towards her father, and he took her. Narrated by Abu Dawood. Our position is that this is a type of authority (wilayah), and therefore it is not established for an unbeliever over a Muslim, like the authority of marriage and property. Furthermore, if it is not established for a corrupt person, then an unbeliever is even more deserving of exclusion, for his harm is greater; he may lead the child astray from his religion and remove him from Islam by teaching him disbelief, beautifying it for him, and raising him upon it, and this is the greatest of harms. Guardianship is only established for the benefit of the child, so it should not be legislated in a manner that entails his ruin and the ruin of his religion. As for the hadith, it has been narrated in a way other than this, and the scholars of transmission (ahl al-naql) do not affirm it, and there is criticism regarding its chain of narration, as stated by Ibn al-Mundhir. It is also possible that the Prophet (peace and blessings of Allah be upon him) knew that she would choose her father due to his invocation, so it was a matter specific to his case. As for someone who is partially free, if there is no agreement (muhaya'ah) between him and his master, then he has no guardianship because he is not capable of it, as his benefits are shared between him and his master. If there is an agreement between them, then the analogy (qiyas) of Ahmad's view is that he has guardianship during his days, because he said: "Everything that is divisible is subject to the half of every matter." This is the choice of Abu Bakr. Al-Shafi'i said: "He has no guardianship," because he is like a slave in his view. This is a principle that has already been established.

1399- Issue: He said: "And the mother is more entitled to the guardianship of the child and the mentally deficient person if she is divorced."

In summary, if a couple separates and they have a child or a mentally deficient person, then his mother is the most entitled of all people to his guardianship when the conditions are met in her, whether the child is male or female. This is the view of Yahya al-Ansari, al-Zuhri, al-Thawri, Malik, al-Shafi'i, Abu Thawr, Ishaq, and the People of Opinion (Ashab al-Ra'y), and we do not know of anyone who disagreed with them. The basis for this is what was narrated by 'Abd Allah ibn 'Amr ibn al-'As, that a woman said: