By Professor Gabriel Sawma
December 3, 2020
Custody of the children in the United Arab Emirates (UAE) is governed by Federal Law No. 28 of 2005 known as Personal Status Law (PSL). Accordingly, the biological mother of the child is the custodian, and the father is the guardian. Custody includes the daily care of the child, which is usually granted to the mother in a manner that does not conflict with the right of guardianship granted to the father. Guardianship involves supervising, protecting, educating and preparing a child for life. The guardian makes the decisions regarding a child’s schooling, or medical treatment for example. Guardianship involves guiding the child in the right direction in terms of morals, and education. The guardian must be rational, mature, honest and able to fulfil the requirement of guardianship.
Custody and guardianship are two separate issues that are dealt with individually as the division of the child’s responsibilities between parents in the UAE is not equal. The court places the interest of the child in the first place and the mother has the custody of her children when a custody dispute is held, unless the judge decides otherwise in the interest of the child
Under Article 156 of the Personal Status Law, custody of women ends when the male reaches the age of eleven, and the female is thirteen years old, unless the court decides to extend it for the benefit of the child until the age of maturity for a male, and until she gets married for the female. Article 147 states that in the absence of the two parents and in case the person entitled to custody declines, the judge shall choose the adequate person from among the relatives of the fostered child or others or one of the institutions qualified for this purpose.
Articles 143 specifies the conditions that must be met by the custodian. These are: Sound judgment, having attained the age of maturity, fidelity, ability to raise the child and provides for his or her maintenance and care, safety from dangerous contagious diseases, and not previously charged for a crime against honor. In addition, article 144 states that if the custodian is a woman, she should not be married in a consummated marriage, to a man not related to the child, unless the court decides otherwise in the interest of the child.
The law of custody in the UAE requires that a parent have the same religion as his or her child. The religion of the child is determined by the father. There, if the father is Muslim, the child is also Muslim, and the mother’s faith must be Islamic in order to be considered for custody. If the mother is not Muslim, her custody may be annulled unless a judge decides otherwise.
WHO HS THE RIGHT TO CUSTODY
Article 146 of the PSL lists the order according to which custody of the children is granted. Mother, father, the mother’s mother and higher, the father’s mother and higher, etc.. When granting custody, the judge will take into consideration the best interest of the child.
THE BEST INTEREST OF THE CHILD
It is important to note that the courts will take best interest of the child into consideration when they decide on the issue of the custody of the children. If an allegation is made by the father that the mother is ‘incompetent’ to be custodian, the court may grant custody to the father, or to the child’s grandmother on the father’s side. the court will usually undertake an extensive investigation into the allegations using statements, witnesses, and hear testimonies from expert witnesses to determine the behavior of the mother. The court will decide based on what is fundamentally in the best interest of the child.
UAE DOES NOT RECOGNIZE A FOREIGN CUSTODY ORDER
Because the UAE is not signatory to the 1980 Hague Convention on the Civil Aspect of Child Abduction, foreign court orders regarding child custody are not enforceable in the UAE. They may, however, be submitted as part of a UAE child custody case. If a foreign based parent has been granted joint custody by his or her local laws, this will not be recognized in the UAE.
NATIONALITY OF THE CHILD AND TRAVEL RESTRICTIONS
A child born of a UAE citizen father is automatically a UAE citizen regardless of where the child was born. UAE citizens must enter and exit the country on UAE passports. A divorced mother cannot travel outside the UAE with her child without written permission from the child’s father. A father may even place a stop order on his former spouse travelling with their child if this is done, the mother will be stopped from traveling outside the country. A mother is able to relocate her and her child to another town or city in the UAE, as long as the move does not hamper the education of the child or cause the father to suffer undue hardship.
While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children, Professor of Middle East Constitutional Law and Islamic Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted to the Lebanese Bar Association. Former Associate Member of the New York State Bar Association, and former Associate Member of the American Bar Association.
Professor Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe, and the Middle East. He wrote Affidavits and legal opinions to State Courts, Immigration authorities throughout the United States.
Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.
Prof. Sawma speaks, reads, and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.
Interviewed by the following news organizations;
Professor of Islamic Finance at the University of Liverpool (2012)
Email: [email protected]
Email: [email protected]
Tel. (609) 915-2237