照顾孩子是法定的义务（fard），因为如果忽视孩子，孩子可能会死亡。正是为了保全生命，安拉（SWT）才使其成为义务，因此必须保护孩子，使其免于死亡，免受危险。尽管照顾孩子是法定义务，但孩子的亲属权利也要求这样做，因为孩子有权获得这种照顾，所以权利与义务都与监护相关。这是每个孩子的权利，也是每个被安拉（SWT）责成照顾他的人的义务。当没有其他人被指定负责时，这一义务就落在监护人身上。至于安拉（SWT）所责成承担监护的人的权利，承担这一监护职责是专属于那些有资格担任的人，而不是普遍适用的；因此，监护权不会交给那些会必然导致孩子死亡的人。所以，监护权不交给孩子本人或患有精神疾病的人，因为他们各自都无力承担监护，他们自己尚需他人照顾，又怎能照顾别人？监护权也不能交给那些必然会导致孩子被忽视的人，即因疏忽或忙于自己的事务而影响其照顾孩子能力的人；或者交给那些具有如Fisq（罪恶行为）等特征的人，因为这种品性必然会败坏孩子的教养，而败坏被视为一种毁灭。

Taking care of the child is fard because it may perish if it is neglected. It is by way of preserving a life that Allah (swt) has made it obligatory, so it has to be protected from death and safe from danger. Even though caring for the child is fard, its right of kinship also requires it, because the child is entitled to that caring, so the right as well as the duty are related to the custody. It is the right of every child and the duty of everyone whom Allah (swt) has obliged to take care of Him. It is fard on the custodian when no one else has been assigned other than Him. As for the right of the one on whom Allah (swt) has obliged the custody, in assuming this custody, it is specific to those who are qualified for it and it is not general; so it is not given to the one with whom the child will surely perish. Therefore custody is not given to a child or the one that is insane, because each of them is unable to undertake it. This is because they themselves are in need of custody, so how could they look after another? And it cannot be given to the one with whom the child will surely be ignored, due to negligence or preoccupation with their own activities which detracts from their ability to look after the child. Or because they are characterised with attributes such as Fisq (transgression) for example, which by its nature will corrupt the upbringing of the child, since corruption is considered a form of destruction.

至于异教徒，无法想象在母亲是穆斯林的情况下，他能够成为孩子的父亲，因为穆斯林女性不得嫁给异教徒。因此已有定论：有权抚养孩子的人应为女性，无论是母亲还是其他人。在这种情况下，需要进行审查。如果孩子已到有辨别能力的年龄，能够理解事物，并能分辨母亲的行为与父亲的行为之间的差别，例如已过断奶之龄，那么在这种情况下，他将被允许在父母之间作出选择。他将被交给他所选择的两人中的一方，这是依据艾卜·达乌德所载的圣训：阿卜杜·哈米德·本·贾法尔从其父处转述，其父又从其祖父拉菲尔·本·希南处转述，拉菲尔·本·希南皈依了伊斯兰教，而他的妻子拒绝皈依。她来到先知（愿主福安之）面前说：“我的女儿；她已经断奶了（或者快要断奶了）。”拉菲尔说：“我的女儿。”先知（愿主福安之）对他说：“你坐到一边去。”他又对她说：“你也坐到一边去。”然后先知让女孩坐在他们之间，并对他们说：“你们叫她。”女孩倾向于她的母亲。先知（愿主福安之）说：“真主啊！引导她。”女孩随后倾向于她的父亲，他便把她带走了。这段圣训由艾哈迈德所载。奈萨伊以其他版本记载了此事，但含义与此段叙述相同。

As for the disbeliever, it cannot be imagined that He can be a father to a child while his mother is a Muslim due to the prohibition of Muslim women marrying disbelievers. It has been decided, therefore, that the person deserving custody of the child be a woman, whether the mother or someone else. In such a situation it will have to be examined. If the child is at the age of distinction and is able to comprehend things and understand the difference between the conduct of his mother and the conduct of his father, as when He is over the age of weaning; in this case He will be allowed to choose between his parents. He will be given to either of the two He chooses, due to what was reported by Abu Dawood that Abdul Hamid ibn Ja’far narrated from his father on the authority of his grandfather Rafi’ ibn Sinan that He (Rafi’ ibn Sinan) embraced Islam and his wife refused to embrace Islam. She came to the Prophet (pbuh) and said: “My daughter; she finished suckling (or was about to stop suckling) Rafi’ said: “My daughter.” The Prophet (pbuh) said to Him: “Be seated on a side.” And He said to her: “Be seated on a side.” He then seated the girl between them, and said to them: “Call her”. The girl inclined to her mother. The Prophet (pbuh) said: “O Allah! guide her.” The daughter then inclined to her father, and He took her. This Hadith has been reported by Ahmad. Al-Nasai reported it in other versions but the same meaning is present as in this narration.

如果孩子尚未达到辨别年龄，不懂事理，也分辨不出母亲和父亲的行为差别，比如还在吃奶或刚断奶，那么孩子没有选择的余地，而是归于母亲抚养。这是依据前述拉菲ʿ·本·西南的圣训的理解，也因为已经证明母亲比父亲更有权获得孩子的抚养权，并且没有任何文本禁止她取得抚养权。这里不应当说抚养权（Hadana）就是监护权（Wilaya），因此异教徒不能对穆斯林拥有抚养权。因为抚养权的实质是照料和服侍孩子，而不是监护，所以监护的规则不适用于它。

If the child is under the age of distinction and does not comprehend things and does not realise the difference between the conduct of its mother and its father in, such that He is still suckling or just finished He is not given a choice but is united with his mother. That is according to the understanding of the aforementioned Hadith of Rafi b. Sinan, and because it has been proven that the mother is more entitled to custody of the child and there is no text that prohibits her from gaining custody. It should not be said here that custody (Hadana) is guardianship (Wilaya) so a Kafir cannot have custody over a Muslim. Because the reality of custody is that it is (child) raising and service, and not guardianship. Thus the rules of guardianship do not apply to it.

母亲在离婚后，对孩子和精神失常者的监护权更有资格。这是根据艾布·达武德（Abu Dawood）从阿卜杜拉·本·阿慕尔·本·阿绥（Abdullah b. Amr b. al-As）处传述：一名妇人说："安拉的先知啊，我的子宫曾是我这个儿子的容器，我的乳房曾是他的水囊，我的怀抱曾是他的护卫，然而他的父亲与我离婚，并想把他从我身边带走。"安拉的先知ﷺ说："只要你没有再婚，你对他更有权利。" 伊本·艾布·沙伊巴（Ibn Abi Shayba）从欧麦尔（Umar）处传述：他与阿绥姆（Asim）的母亲离婚。后来他去探望她，阿绥姆正坐在她的怀里。他想把孩子从她那里带走，两人便来回拉扯，直到孩子哭了起来。于是他们去找艾布·伯克尔（Abu Bakr），他说："她为他擦拭、她的怀抱和她的气味，对他而言，比你更好，直到他长大，能够自己选择。" 如果母亲因不符合关于监护的条件而不能担任监护人，例如已经再婚或精神失常等，或她不符合其中的某些条件，她就被视为不存在，于是监护权转给在顺序上与她最接近的人。如果父母都不具备担任监护人的资格，监护权就转给在顺序上与他们最接近的人，因为他们被视为缺失。 最有权利担任监护人的是母亲，其次是她的母系亲属（母亲和祖母）以及更高的长辈；其中与母亲最接近的优先，因为她们都是女性，且她们的生育经历是确定的，所以她们与母亲享有同样的地位。随后监护权转给父亲，然后是父亲的母系亲属（母亲和祖母）；再转给祖父，然后是祖父的母系亲属；再转给父亲的祖父，然后是他的母系亲属，即使她们不是继承人，因为她们与有资格担任监护人的人有亲属关系。 如果父母都已去世,监护权便转给姐妹。父母双方的姐妹优先;然后是同父异母的姐妹,再然后是同母异父的姐妹。姐妹优先于兄弟,因为她是女性,因而是最有资格担任监护人的人之一。她优先于那些与她处于同一层级(就监护权而言)的男性。如果没有姐妹,则父母的兄弟拥有更大的监护权。然后是同父异母的兄弟,再然后是他们的儿子。同母异父的兄弟没有监护权。如果他们不在,监护权便转给母系的姨母。如果她们不在,则转给父系的姑母。如果她们也不在,则转给父母双方的伯叔。然后是同父异母的伯叔。同母异父的叔舅没有监护权。如果他们不在,监护权便转给母亲一方的祖母(母系),然后是父亲一方的祖母(母系),再然后是父系的祖母。母亲一方的父系祖母没有监护权,因为她与母亲的父亲有血缘关系,而他没有监护权。

The mother is more entitled to have custody over the child and over the insane when she becomes divorced. This is due to what Abu Dawood has reported on the authority of Abdullah b. Amr b. al-As that a woman said: “‘Prophet of Allah, my womb is a vessel to this son of mine, my breasts are a water-skin for Him, and my lap is a guard for Him, yet his father has divorced me, and wants to take Him away from me’. The Prophet of Allah (pbuh) said: ‘You have more right to Him as long as you do not marry.’” Ibn Abi Shayba reported on the authority of Umar that He divorced the mother of Asim. Later He visited her and Asim was on her lap. He wanted to take Him from her. They pulled Him back and forth until the boy began to cry. So they went to Abu Bakr who said: “Her wiping, her lap and her smell are better for Him than yours until He grows up so that He can choose for Himself.” If the mother is not a custodian because she does not meet the conditions mentioned with regards to it, or she does not meet some of them such as being married or insane etc. she is considered as if she does not exist, and so the right of custody passes to the closest to her in entitlement. If the parents do not qualify as custodians then the right of custody goes to whoever is closest to them because they are considered as missing persons. The one most entitled to custody is the mother and then to her mothers (mother and grandmother) and higher; the closest from amongst them to the mother is given precedence, because they are women and their experience of childbearing is certain. So they are considered in the same sense as a mother. The right of custody then goes to the father, then his mothers (mother and grandmother); then to the grandfather and then to his mothers; then to the father’s grandfather and then to his mothers even if they do not inherit, because they have relations with those who are qualified to be custodians. If the fathers and mothers have died then the right of custody passes to the sisters. The sisters of the mother and father are given precedence; then to the half sister through the father and then to the half sister through the mother. The sister is given precedence over the brother because she is a woman and thus one of those best qualified for custody. She is given precedence over those men who are at her level (in terms of the right to custody). If there is no sister then the brother of the parents have greater entitlement. Then the half brother through the father and then to their sons. The half brother through the mother has no right to custody. If they are not present then the custody passes to the maternal aunts. If they are absent then to the paternal aunts. If they are absent, then to the paternal uncle through the two parents. Then to the paternal uncle through the father. The uncle through the mother is not entitled to custody. If they are absent then it passes to the grand aunts (maternal) through the mother, and then to the grand aunts (maternal) through the father, and then to the grand aunts (paternal) through the father. The grand aunts (paternal) through the mother are not entitled to custody because they are related to the mothers father and He has no right to custody.

监护权不会因一方有权而转移给下一位有权者，除非该人缺席或丧失能力（Ahliyya）。然而，如果拥有监护权的人放弃对孩子的监护，那么监护权不会转移给下一位监护人，除非其具备监护的能力。因为监护权虽然是监护人的权利，同时也是其义务，也是孩子的权利。因此，除非有符合条件的人承担这项义务，否则放弃监护是不可能的。只有这样，监护权才会按照上述顺序，转移给放弃监护权之人之后最近的那位监护人。如果放弃监护权的人想再次主张该权利，并且其监护能力依然存在，那么他仍保有该权利，孩子应归还给他。同样，如果母亲再婚，其监护权便失效；但如果她是离婚的，其监护权则重新归属于她。同理，对于任何有权监护但因障碍而无法行使的亲属，一旦障碍消除，其监护权即恢复，因为监护的理由依然存在。

Custody does not pass from one that is entitled to the next entitled except in the event of his/her absence or in the event of incapacity (Ahliyya). However, if the one with the right of custody abandons custody of the child then custody does not pass to the next custodian unless they are capable of custody. Because custody, even though it is the right of the custodian, is also at the same time an obligation upon Him/her and a right for the child. So to relinquish custody is not possible except if someone who is qualified undertakes the obligation. Only then does custody pass to whoever is closest to the custodian who has relinquished his custody according to the above order. If the one who has relinquished the right to custody wishes to demand that right again and their capacity to take custody still exists then they maintain that right and the child is returned. Likewise, if the mother remarried and her right to custody is nullified, but was she divorced then her right to the custody of the child reverts back to her. Similarly, for any relative who is entitled to custody but is prevented by an impediment, if the impediment ceases then their right to custody returns because the reason for custody still exists.

如果一群人对谁更有权利抚养某个孩子发生争执，则优先考虑有权抚养者的后代。据艾尔-巴拉厄·本·阿齐卜传述，阿里、贾法尔和宰德曾就哈姆扎的女儿发生争执。阿里说："我更有权抚养她，因为她是我伯父的女儿。"贾法尔说："她是我的堂妹，她的姨母（母系）是我的妻子。"宰德说："哈姆扎是我的侄子。"安拉的使者ﷺ判定她的姨母（母系）更有权抚养。他ﷺ说："母系的姨母等同于母亲。" 以上所述，都是针对需要抚养以保护其免于死亡的孩子而言。至于不需要抚养的孩子，因为他/她已不需要抚养，抚养的理由（Illa）便随之消失，因此抚养的义务以及亲属的抚养权利也随之消失。届时需要再行审视。如果拥有抚养权的人，例如母亲，是一个不信道者，那么孩子将被从她身边带走，交给对他有监护权的人，因为此时的实质已从抚养转变为监护，而不信道者不得享有监护权，这是基于他（SWT）的话语。

If a group of people dispute over which of them is more entitled to the custody of a child, the descendent of the one who is more entitled to custody is preferred. It is narrated by al-Barra b. ‘Azib that ‘Ali, Ja’far and Zayd disputed about the daughter of Hamza. Ali said; “I am more entitled to take custody of her because she is the daughter of my paternal uncle.” Ja’far said: “She is my cousin and her aunt (maternal) is my wife.” Zayd said: “Hamza is my nephew.” The Messenger of Allah passed judgement in favour of her aunt (maternal). He (pbuh) said: “The maternal aunt is in the position of the mother.” All of this is with regards to the child which is in need of custody in order to protect it from death. As for the child which is in no need of custody, then by the absence of his/her need for custody, the reason (Illa) of his custody disappears, and thus the rule of the obligation for his custody and the right of his relatives to custody disappears. Then the matter will be examined. If the one who had the right to custody, such as the mother, was a disbeliever then He will be taken from her and given to someone who has guardianship over Him because the reality has changed to guardianship not custodianship. Guardianship is not allowed for a disbeliever due to his (swt)’s saying:

“真主绝不会让不信道者对信道者有掌权的途径”[《妇女章》141节]。又因为他（SWT）所说：“伊斯兰将永远占上风，任何事物都不能压倒它。”这段经文是普遍性的，没有任何经文予以限定；而抚养的特定讨论并不适用于真主，因为祂无需人来抚养。但如果有资格担任监护和保护之责的人都是穆斯林，比如父亲和母亲都是穆斯林，那么男孩或女孩，即年幼的男童或女童，将被赋予在父亲和母亲之间选择的权利。无论他们选择跟随哪一方，就归属于那一方。这是根据艾哈迈德、伊本·马哲和提尔米兹所传述的、来自艾布·胡莱赖ﷺ的圣训：“先知ﷺ让一个男孩在他的父亲和母亲之间进行选择。”在艾布·达伍德的传述中：一名妇女来到真主的先知ﷺ那里，说：“真主的先知啊，我的丈夫想要带走我的儿子，而他曾为我从阿比·伊纳巴的井里打水，并且对我很好。”真主的先知ﷺ说：“你们为他抽签。”她的丈夫说：“谁与我争夺我的儿子？”先知ﷺ说：“这是你的父亲，这是你的母亲，你想拉谁的手就拉谁的手。”于是他拉起了他母亲的手，她就带着他离开了。拜哈基从欧麦尔那里传述，欧麦尔允许一个男孩在父亲和母亲之间进行选择。他还从阿里那里传述，阿里允许阿玛拉·吉宎米在七八岁的童年时，在他的母亲和父系姑母之间进行选择。这些圣训是明确的，其中的证据表明：如果父母就孩子发生争执，那么必须让孩子进行选择，孩子选择跟随谁，就跟随谁。至于艾布·达伍德传述中提到的抽签，在奈萨仪的传述以及其他传述中都没有提及。 这指的是孩子没有选择其中任何一方的情况。给予选择的权利并不限定于特定年龄。相反,此事交由法官裁定,由他根据专家的评估决定什么是正确的。如果专家们认为孩子不再需要抚养,即不需要照顾,并且法官对此确信,那么他就会赋予孩子选择权;否则,他就会让孩子跟随有抚养权的一方。这因孩子而异:一个孩子五岁时可能已不需要抚养,另一个孩子则可能到九岁时仍需要。应当考虑的是孩子的年龄,以判断他是否需要抚养。

“And Allah will never allow an authority to the disbelievers over the believers” [An- Nisa: 141] And because of his (swt) saying: “Islam will always dominate and nothing shall dominate over it.” The speech is general, nothing has come to specify it and the specific discussion of upbringing does not apply to Him for He is in no need for upbringing. But if those entitled to custodianship and guardianship are Muslims, such as when the father and mother are Muslims, then the boy or the girl i.e. young boy or girl will be given the choice between the father and mother. Whichever one they choose they will be joined to, due to what Ahmad, Ibn Maja and al-Tirmidhi have reported on the authority of Abu Hurayra “that the Prophet (pbuh) gave a boy the choice between his father and mother.” And in the narration of Abu Dawood: that a woman came to the Prophet of Allah (pbuh) and said: “My husband wishes to take away my son, O Prophet of Allah, and He drew water for me from the well of Abey Inabah and He has been good to me.” The Prophet of Allah (pbuh) said: “Cast lots for Him”. Her husband said: “Who is disputing with me about my son?” The Prophet (pbuh) said: “This is your father and this is your mother, so take the hand of whomever you wish. So He took his mother’s hand and she went away with Him.” Al-Bayhaqi has produced a report from Umar that He granted a boy the chance to choose between his father and mother. He also produced a report from Ali that He granted Amara al-Jizzami the right to choose between his mother and paternal aunt when He was a boy of seven or eight years of age. These Ahadith are clear and there is evidence within them, that if the father and mother dispute over their child, then it is obligatory to give the child the choice; and they will go with whoever is chosen. As for the casting of lots mentioned in the narration of Abu Dawood, it is not mentioned in the narration of al-Nisai nor in the other narrations. It is understood to refer to a situation where the child did not choose either of them. The granting of choice is not restricted to a specific age. Rather, it is referred to the judge to decide what He deems correct according to the estimation of the experts. If they say He does not require custody, i.e. upbringing, and the judge is convinced of that, then He will grant Him the choice. Otherwise He will leave Him with the one who has the right to raise Him. This differs according to the children. A child may not be in need of custody when He is five years old, another child may not need it when He is nine. The consideration is the age of the child in terms of whether He is in need for custody or not.