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Fatwa CenterHer father made Istikhaarah on her behalf to give her baby to her ex-husband
Question
Assalaamu alaykum wa rahmatullaahi wa barakaatuhu. In the name of Allaah, I got married a second time with a son of my first husband living with me and my second husband. However, due to unavoidable circumstances, I took a khul' and now have another son from second husband who is one month old. I want to keep both sons with me, but my father refused to keep my one-month-old son with me and forced me to give him back while trying to make me understand the fact that keeping sons from two different husbands will create many disputes in many ways and will cause me to be looked down upon by society. He prayed istikhaarah and gave him without my will. I do not want to go against my parents as well, but I am grieved by the fact that I could not make istikhaarah as I was still in my 40 days (after giving birth), and this creates quarrels between us. I really need your help because I heard that istikhaarah has to be done by the person who is making the decision, and given that it is my son, the decision has to be made by me, but my father took the decision because I could not make istikhaarah, and my dad took him and gave him. Is this valid? I feel bad as my son is being deprived from my milk. I feel that if I had done istikhaarah and made my decision, this would not have happened. Please reply.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad 
is His slave and Messenger.
The custody of a young child after the separation of the parents is for the mother unless there is an impediment that prevents her from having custody. Please, refer to fatwa 84618.
When the mother deserves custody, then the scholars differed in opinion regarding her right to give up custody of the child. Some of them are of the view that it is not permissible for the mother to renounce her custody because the custody is the right of the nursed child and not the right of the person who is providing the custody. Based on this view, Istikhaarah is not to be made to decide whether to keep custody or renounce it because istikhaarah is not permitted in matters that are not lawful.
According to the other view, istikhaarah is permissible provided that leaving the child with his father does not cause any harm to him [the child].
Also, it is the person (who has a need) who performs the istikhaarah himself and not someone else who does it on his behalf. If a woman is in her post-partum bleeding and wants to perform istikhaarah, then she supplicates with the supplication of the istikhaarah without performing the prayer.
We advise you to consider the interest of the child, and if it is in his best interest to be in your custody, then you should take custody, and your father has no right to prevent you from doing so.
Allaah knows best.
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