CHILD CUSTODY AFTER DIVORCE UNDER ISLAMIC LAW: A PUBLIC LAW PERSPECTIVE ON PATERNAL ENTITLEMENT AND LEGAL OVERSIGHT

Abstract

This paper critically examines paternal custody rights under Islamic law, with a focus on the legal, ethical, and institutional frameworks that guide custody decisions after divorce. It explores the circumstances under which a father may be entitled to custody of a child, particularly after the traditional maternal right of hadanah lapses. The paper adopts a public law perspective, analysing how state oversight and statutory frameworks, including those found in Sharia-compliant legal systems within and outside Nigeria, mediate the application of Islamic principles to serve the best interest of the child. It argues for a harmonized approach that respects Islamic jurisprudence while ensuring compliance with constitutional protections of children’s rights and international human rights norms. The paper adopts a doctrinal legal research method and concludes that a balanced custody framework must consider both the spiritual and welfare dimensions of child upbringing, incorporating public law principles such as judicial oversight, non-discrimination, and child protection.