Under what conditions may the finder retain custody of the foundling, and when must he be prevented from traveling with him?
General Chapter
Al-Mughni
Book of Foundlings
Primary text
If the finder is deemed trustworthy (*amin*), the foundling remains in his custody, as 'Umar confirmed custody with Abu Jameelah based on his reputation for trustworthiness, and because the finder was the first to claim him, giving him precedence based on the saying, 'Whoever precedes another Muslim to something not previously claimed by a Muslim has the greatest right to it.' However, whether bearing witness (*Ishhad*) is obligatory remains debated; one view says no, similar to lost property, while the stronger view says yes, because the purpose of preserving lineage and freedom requires witnesses, unlike lost property where the purpose is preserving wealth.
Supporting text
If the finder is not trustworthy (*ghair amin*), the apparent position is that he retains custody but must be prevented from traveling with the child to prevent falsely claiming slavery and selling him. Witnessing and adding a trustworthy supervisor should be required. However, the standard juristic position (*al-Madhhab*) and the view of Al-Shafi'i is that the child must be removed from his custody entirely, as a disobedient person (*fasiq*) has no right of guardianship (*wilayah*) over the foundling, only the right of custody (*hadanah*). This is preferred because unlike lost property, which can eventually be returned to the finder after a year, the foundling, once removed, is never returned to an untrustworthy finder.