This blog article discuss about the Legitimacy of Child Custody as per UAE Personal Status Law no. 28 of 2008, Conditions of Eligibility & Order of Custodians
Authored by Legal Advisor: Hussain Mohammed Aref Hussain
The Legitimacy of Child Custody
One of the most important aspects of the dissolution of marriage or divorce is the children given birth to by such marriage, their fate, and the parent, best fit to attend to, raise, take care of, guard them, achieve their best interest and repel any harm thereto.
The interpretive memo of UAE Personal Status Law noted that the custody is the right and duty to the child, of which the spouses are responsible to deliver upon their matrimony. Upon separation of spouses, the mother is granted the custody of children if she is fit to, as per the conditions set by the law, and is willing to.
UAE laws have indicated that custody of child depends on three rights; of father, of custodian, and of child under custody. If the three rights existed and in harmony with each other, they are considered valid; but if they contradict, the right of the child under custody is best favored. That is because the custody must serve the best interests of the child under custody, therefore, whenever such condition do exist, rights of father and mother are ignored.
Conditions of Custody Eligibility
Article 143 of UAE Personal Status Law specified general conditions the custodian must achieve, whether they are male or female, and they are as follows:
Being of sound mind, mature adult, honest, capable of raising, caring for and attending to the child under custody, free of serious infectious disease, and not sentenced to an honor crime.
The aforementioned conditions, therefore, indicate that child custody will not be granted to:
- A mad or insane person for they need a guardian to protect and care for them, thus they are not eligible to be guardian of others.
- A person whose sickness renders them incapable of taking care of the child, or is too old to manage the child’s businesses, or has an infectious disease, such as leprosy or tuberculosis, that would affect the child under custody.
- A person sentenced with a crime of rape, indecent assault, indecent liberties, immorality and adulterous.
Article 1/144 of Personal Status Law indicated two additional conditions a woman must achieve be eligible of custody, which are:
First Condition: Not having a spouse alien to the child under custody who consummated their marriage, unless the court ruled against that for the best interests of the child under custody. That is because an alien spouse mostly hates his wife’s child. Similarly, the Article does not indicate whether a custodian must be a mother or not.
Amr Bin Shoaeb passed on from his father and grandfather that “a woman once came to prophet Mohammed, God’s blessing and peace be upon him, and said to him: My womb carried my child, my breasts fed him and my lab warmed him, but his father divorced me and wants to take him away from me. Mohammed, God’s blessing and peace be upon him, then told her: you are more eligible to your child unless you marry another man“.
Prophet Mohammed, God’s blessing and peace be upon him, also said “He who separates between a mother and her child, God will separate between them and their beloved ones on Doomsday“.
Therefore, if the custodian of a child married a Muhrem, such as their uncle or grandfather, she does not lose her custody, for the family relationship between uncle or grandfather and the child forces them to be gentle on him, therefore the child is secure with them.
Second Condition: To have the same religion of the child, unless the court rules against that for best interests of the child under custody, on a condition that custody period shall not exceed five years, whether the child is male or female.
Article 145 of Personal Status Law gives this time-limited exception to the mother alone. The interpretive memo notes that reasons to such exception are that child custody is based on compassion and affection for the child and child’s best interests, therefore, the difference of religion does not affect the relationship between the custodian and the child under custody, unless the child who completed five years is starting to be affected by his custodian’s religion, which is other than his.
The second clause of Article 144 indicates three additional conditions a man must achieve in order to be granted child custody, and they are as follows:
To have a woman fit to be guardian of the child.
To be Muhrem to the child if the child is female.
To have similar religion of that of the child.
Order of Eligible Custodians
UAE Personal Status law specified in clauses nos. 1, 2 and 3 of Article 146 a certain order of eligible custodians, giving the custody in first place to the mother, then to female Muhrems, favoring those related to the mother than those related to the father with the closest relation, except the father.
The reason for favoring the mother and then female Muhrems is that women are most compassionate for the child, wiser and more patient to raise, and more likely to stay by the child in its early stages than others, which is what the child needs most.
Therefore, the law as concerned with the child’s best interests specifies the order of eligible custodians as follows:
“Mother – father – the mother’s mother even if she is higher in grade – the father’s mother even if she is higher in grade – sisters, favoring the sibling sister then a mother’s sister then a father’s sister – the sibling sister’s daughter – daughter of a mother’s sister – aunts in the same aforementioned order of sisters – daughter of a father’s sister – brother’s sisters in the same aforementioned order of sisters – aunts in the aforementioned order – the father’s great-aunts in the aforementioned order – mother’s great-aunts in the aforementioned order – the father’s great-aunts in the aforementioned order“.
It is noteworthy to note that if eligible custodians deny the custody, whether be females or males, the custody goes to those following them in order and is notified by the judge. If they also refuse to take custody, or have not expressed their opinion, the custody is given to next grantee.
Moreover, if there exists many eligible custodians and in same grade, such as sibling sisters or aunts, the court chooses who best fits to guard the child.