How is custody of an abandoned child (Laqit) determined when two individuals claim custody?
General Chapter
Al-Mughni
Book of Foundlings
Primary text
When two individuals claim custody of an abandoned child through a single act of picking up, the ruling depends on their respective eligibility to retain custody. If one individual is someone whose custody is legally accepted (like a just, free Muslim) and the other is not (like an unbeliever), the child is given to the one whose custody is accepted. Custody is also preferred for the one who is more capable if both are eligible, such as preferring the wealthy over the poor, as wealth secures better provision for the child's sustenance. If the claimants are equally capable but one is Muslim and the other is a non-Muslim claiming custody of a child presumed to be non-Muslim, the Muslim is preferred because Islam offers a greater benefit to the child in both worlds, outweighing the temporary benefit of the non-Muslim's wealth. If the Muslim is poor and the non-Muslim is wealthy, the Muslim remains preferred because the eternal benefit of Islam surpasses the temporal benefit of wealth coupled with disbelief. If both claimants are equally eligible (e.g., both are just, free, resident Muslims), they are considered equal. If one waives their right, the other receives custody. If they dispute, lots (Istiqra') are drawn between them, citing the precedent concerning Mary's guardianship (Quran 3:44).
Supporting text
Alternative views hold that the just Muslim and the non-Muslim are equal in preference when claiming a child presumed to be a non-Muslim, as the non-Muslim has legal guardianship over those of his faith, making him equal to the Muslim when both are capable of retaining custody individually. Furthermore, if one claimant is merely of unknown uprightness while the other has established justice, the latter might be preferred because the certainty of integrity is stronger than mere possibility, though it is also argued they remain equal because the doubt about the former's character does not disqualify him outright.