Who has priority in custody when one parent travels and the other remains settled?
Chapter on Who is More Entitled to Child Custody
Al-Mughni
Book of Maintenance (Nafaqāt)
Primary text
The settled parent has priority in custody. This is because taking the child while traveling causes harm to the child. If the travel is to relocate permanently, and the route or the destination is feared (dangerous), the settled parent retains custody due to the inherent danger of travel. Even if the child desires to travel in such circumstances, the parent is not obligated to comply because it involves exposing the child to peril. If the destination and route are safe, the father has a greater right, whether he is the one moving or staying. However, if the distance between the two residences is short, allowing the father to see the child daily, the mother maintains custody.
Supporting text
Al-Qadi stated that travel less than the distance of a legitimate journey (Qasr) is considered equivalent to permanent residence in this matter, as held by some Shafi'i scholars, because it is treated as residence in other rulings, and the father’s supervision is possible. The established ruling from Ahmad bin Hanbal, which is preferred, indicates that any distance preventing regular visits also prevents the father from proper disciplining, teaching, and monitoring the child's condition, thereby resembling the distance of Qasr.