She got a divorce and custody rights through the German courts; is that justified?

Firstly:

It is not permissible fora woman to seek divorce unless she has a reason that makes that permissible,such as bad treatment on the husband’s part, because of the report narrated byAbu Dawood (2226), at-Tirmidhi(1187) and Ibn Maajah(2055) from Thawbaan (may Allah be pleased with him)who said: The Messenger of Allah (blessings and peace of Allah be upon him)said: “Any woman who asks her husband for a divorce for no good reason, thefragrance of Paradise will be forbidden to her.”

Classed as saheehby al-Albaani in SaheehAbi Dawood

If there is a valid reason, it ispermissible for her to ask her husband for a divorce and if he refuses, she mayrefer the matter to the Islamic judge. If there is no Islamic judge, then sheshould refer to the Islamic Centre in her city.

Secondly:

If the divorce is given by the husbandor through the Islamic Centre, it is permissible to document it in the civilcourts that do not rule according to sharee‘ah.

But if the husband refuses to give adivorce and the civil court issues a divorce, this does not count as a talaaq, because a divorce issued by a kaafirjudge does not count as such.

The fuqaha’are unanimously agreed that the Islamic stipulations concerning the judge whojudges between Muslims must be a Muslim, because passing judgementscomes is a kind of wilaayah (authority), and the kaafir has no authority over a Muslim.

This has been discussed previously inthe answer to question no. 127179,in which we stated that if a woman obtains a civil divorce, she should take itto the Islamic Centre and show it to scholars who are qualified in such mattersin order to complete the matter in the manner prescribed in sharee‘ah.

Thirdly:

If the divorce was completed in theprescribed shar‘i manner, the mother retains custodyof the children until they reach the age of seven years, so long as she doesnot remarry, because of the report narrated by Ahmad (6707) and Abu Dawood (2276) from ‘Abdullah ibn‘Amr (may Allah be pleased with him), according towhich a woman said: O Messenger of Allah, this is my son; my womb was a vesselfor him, and my breasts gave him to drink, and my lap was a protection for him.His father has divorced me and he wants to take him away from me. The Messengerof Allah (blessings and peace of Allah be upon him) said: “You have more rightto him so long as you do not remarry.”

This hadeethwas classed as hasan by al-Albaaniin Saheeh Abi Dawood. 

When the child reaches the age of sevenyears, in the case of a male, he is to be given the choice between his parents,to choose which of them he prefers to stay with. With regard to the femalechild, there was a difference of scholarly opinion concerning the matter.

Ash-Shaafa‘isaid: She should also be given the choice.

Abu Haneefahsaid: The mother has more right to custody of her until she gets married orstarts to menstruate.

Maalik said: Themother has more right to custody of her until she gets married and the husbandconsummates the marriage with her.

Ahmad said: The father has more right tocustody of her, because it is more appropriate for the father to take care ofher and protect her.

See: al-Mawsoo‘ahal-Fiqhiyyah,17/314

This applies if both partners are fit tohave custody; if one of them is not fit to have custody because he is anevildoer, for example, then custody is given to the other party.

This matter should be referred to atrustworthy Islamic authority in your country, to examine the husband’ssituation and the age of the child, and determine who is more entitled tocustody of him.

And Allah knows best.