Maternal Custody After Remarriage in Jordanian Personal Status Law:

Reconciling Articles 170 and 171 with the Child’s Best Interest

Zainab Zakaria Ali Ma’abadeh

 

Abstract: This article examines the issue of maternal custody following remarriage under Article 170 of the Jordanian Personal Status Law, which mandates the termination of custody if a mother marries a man who is not a maḥram (a person one is permanently forbidden to marry and with whom seclusion is permitted in Islamic law1) to the child. The article probes whether this provision aligns with the child's best interests and the objectives of Islamic law regarding child protection. It argues that automatic revocation of custody solely due to remarriage may negatively impact the child’s emotional and social well-being. Based on the analyses of juristic interpretations of the Hadith: “You are more entitled to him as long as you do not marry,”2 the article emphasises that remarriage alone should not invalidate maternal custody unless actual harm is proven. In turn, the article highlights the ineffective utilisation of Article 171, which grants judges discretionary power to uphold maternal custody when beneficial to the child. Therefore, the article recommends amending Article 170 to require evidence of harm before revoking custody, while empowering courts to assess each case based on the child’s welfare.