The applicable law in relation to children matters and ‘custody’ in the United Arab Emirates is the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law). The fundamental basis of these laws, is that decisions made in respect of a child should be based on what is in the child’s best interests. These laws are based upon the principles of Islamic Sharia. In the UAE, they apply to Muslim and non-Muslim and expatriate and national families alike.
Custody and Guardianship
An interesting facet of 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. It is possible for one parent to play both roles. Most often the mother is awarded custody of children up to a certain age, whereas the father is always considered the guardian. However, the Court has discretion to make orders that are in the child’s best interests.
What is an ‘unfit’ carer?
Under the laws of the UAE, custody would be withdrawn from the mother is she is deemed ‘unfit’ to be the main carer of the child. To be deemed as a fit custodian, the mother should fulfill a list 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 in to 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 decision as to whether a mother is an ‘unfit’ custodian is not one that is taken lightly by the Court. Notwithstanding the allegations made or evidence provided, the Court will make a decision based on what is fundamentally in the best interests of the child involved. Certain laws even specify that a custodian must be of the same religion as the child; nevertheless, courts must not adhere to that condition if the interests of a child are best served with a custodian of a different religion.
Best Interests of child is important
The statutory provisions provide clear guidance on the mother’s custody rights. 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. In that same clause, the law sets out that this circumstance can change if the court determines something else is best for the child. A recent case concerning child custody reached the Supreme Court of Abu Dhabi. This case involved a young girl of 13 years, who lived with her mother, the custodian, and was due to be returned to the guardian, her father, in accordance with Article 156. After months of trials, hearings, and appeals, the Supreme Court of Abu Dhabi did not grant the father custody of his daughter. Though this goes against Article 156, the court found it would be in the best interests of the young girl to stay with her mother until she is married. This case exemplifies the Court’s discretion to make orders that best meet the needs of the child.
Click here for a further article discussing the arrangements for expat children after divorce in Muslim countries.