Divorce is a common occurrence, and it often brings about conflicts, particularly when it comes to child custody. These conflicts can significantly intensify the emotionally charged and tense atmosphere for parents, children, and other stakeholders involved. This is where the UAE’s constantly evolving Personal Status Law comes into play.
Article 142 of the Personal Status Law of the UAE provides a clear definition of ‘custody.’ It is described as the act of “keeping, raising, and nurturing the child without infringing upon the rights of the child’s guardian.”
Distinguishing Custodianship from Guardianship
Although both custodianship and guardianship involve caring for a child, the distinction between the two lies more in their scope than their intent. A guardian is primarily responsible for the child’s financial support and has authority over significant life decisions such as education, marriage, and immigration. On the other hand, a custodian is a more hands-on and day-to-day caregiver, tending to the child’s everyday needs. Typically, the father assumes the role of guardian, while the mother typically serves as the custodian.
The Evolving Landscape of Custody Laws
Custody laws continue to evolve and expand their scope to ensure they remain comprehensive and pertinent. The paramount concern of the legal system and courts in custody disputes is the best interests of the child.
Following Article 146 (7) of the Personal Status Law, both parents have the right to seek custody of their child in case of a dispute, even if the mother has left the marital home while their marital relationship still exists. The judge’s decision regarding their application is guided by the welfare of the children.
A Closer Look at the Legal Provisions
Article 156 (1) of the UAE Personal Status Law stipulates that custody granted to women will typically conclude when the child reaches 11 years of age if male, and 13 years if female. However, the court may extend this period up to the age of maturity for males and until marriage for females if it is determined to be in their best interest.
Differing regulations regarding male and female children
In simpler terms, the legal system distinguishes between the custody arrangements for children based on their gender. Concerning males, the law stipulates that custody of a male child shall typically be granted to the mother until the child reaches the age of 11. This law includes provisions for flexibility, taking into consideration individual circumstances and situations when deciding whether to extend this custody period.
Similarly, the mother is typically awarded custody of female children, but with a somewhat longer duration, specifically until the girl reaches the age of 13. After this period, akin to the situation with male children, a thorough evaluation is conducted to determine the potential extension or termination of the custody arrangement.
The Courts consider various factors when determining child custody, including:
1. Religious Affiliation of the Parents:
In cases of inter-religious marriages, local courts typically favor awarding custody to the parent who shares the same religion as the child.
2. Parent’s Income and Marital Status:
The court takes into account the socio-economic status and marital situation of each parent before reaching a custody decision. In some cases, custody may be denied to a mother who has remarried, at the discretion of the judge.
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3. Residency Situation:
When divorced parents reside in different countries or plan to do so, the court faces a complex situation, as custody rights will impact long-distance parent-child relationships.
4. Mental Well-Being and Competence of Parents:
The Judge has discretionary authority to assess the competence of parents. This assessment may include considerations of immoral or un-Islamic behavior. Additionally, the mental health of each parent and the child’s best interests are taken into account.
5. Child Maintenance:
Fathers are legally obligated to provide child maintenance, regardless of the financial status of either parent. The Court calculates the necessary amount for the child’s daily needs, including education, sustenance, travel, clothing, and potential household help. Typically, this amounts to one-third of the father’s income.
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6. Rules for Expatriates:
Non-Muslim expatriates can request the application of their home countries’ Laws in child custody cases. This entails the Judge legally translating and interpreting these laws in their entirety.
7. Disputes Resolution:
Acrimonious divorce cases often lead to contested child custody issues. Article 146 (6) stipulates that in such disputes, “The mother shall have the right to her children’s custody unless the judge decides otherwise for the child’s best interest.”