Does the mother's right to custody return if the divorce was revocable (raj'i) after she remarried and was subsequently divorced again?
Chapter on Who is More Entitled to Child Custody
Al-Mughni
Book of Maintenance (Nafaqāt)
Primary text
The positions of Al-Shafi'i, Abu Thawr, and the Ahl al-Ra'y support the view that if the mother was divorced revocably, her right to custody does not immediately return if she had waived it. However, Abu Hanifa and Al-Muzani argued that if the divorce was revocable, her right does not revert because the marital relationship is ongoing, resembling the situation while still married. The sounder position asserts that since she is divorced, her right to custody returns, similar to an irrevocable divorce (ba'in). Although she is considered the husband's wife, he has separated her from his bed, and she no longer has a claim to his turn (Qasm) or ongoing marital association, making her similar to one in an irrevocable waiting period.
Supporting text
It is concluded that when the marriage contract is terminated before consummation, the right to custody is nullified due to the absence of the right to cohabitation (Qasm) and marital association, aligning with the established views of Abu Hanifa and Al-Muzani in this specific scenario.