Custody and Guardianship rights in the UAE
Custody laws in the UAE is the different roles assigned to mothers and fathers, being the ‘custodian’ or ‘guardian’. A guardian of a child financially maintains the child, makes important decisions about the child’s education and upbringing, and generally takes care of the child’s affairs. The custodian, on the other hand, is concerned with the child’s day to day life. The custodian has actual, physical custody of the child on a day to day basis, and must raise and take care of the child. Under the laws of the UAE, custody would be withdrawn from the mother if she is deemed ‘unfit’ to be the main carer of the child. To be deemed fit as a custodian, the mother should fulfill a list of obligations, including being of sound mind, honest, mature, capable of raising a child, free of an infectious disease, and must not have been sentenced to a serious crime. If an allegation is made by the father that the mother is an ‘unfit’ custodian, the Court will undertake an extensive investigation into the allegations using statements, witness evidence or the instruction of an independent expert, who may be asked for example to report on the mother’s mental health. The Court will make a decision based on what is fundamentally in the best interests of the child involved. Article 156 of the Federal Law No. 28 of the year 2005 (UAE Personal Status Law) states that the custody of a child should go to the mother, until 11 years of age for a boy and 13 years of age for a girl. Child abduction If the parents are UAE residents and one parent abducts the child from UAE to another country, the resident parent first has to apply for a custody claim before the UAE courts. Once the parent obtains the custody court order, they may then file a criminal case for child abduction before the UAE courts, followed by filing a request to Interpol for extradition. Under the UAE Personal Status Law, there is no specific concept of joint custody and according to Article 146 of the UAE Personal Status Law, the mother has the first right to be a custodian, followed by the father. Having said the above, under the Abu Dhabi Law No. 14 of 2021, the parents have equal rights regarding the child custody until the age of 16 years old, and after this age the child shall have the right to choose between his parents. But this is applicable only on non-Muslims in Abu Dhabi and is not in accordance with Article 144 of the UAE Personal Status Law, where if the custodian is a woman, then she should be of the same religion as the child and not be married to a man not related to the child, unless the court decides otherwise in the interest of the child in the UAE. Child custody is an important consideration when spouses are getting divorced. Divorce in itself is a tough situation to be in, when there are children involved. However the personal law of the parties is to be taken into consideration even if deciding the custody of the child. The welfare of the child is of paramount importance and cannot be overruled by the personal law, and the welfare of the child must be the deciding factor. At the same time the personal law cannot be completely sidelined as the personal law would be an important facet of the welfare of the child and must also be taken into consideration.
0 Comments
Add your comment