Lapse in Child Custody According to Personal Status Law No. 28 of 2005
By Counselor Hussain Mohammed Aref Hussain
In the article about Child custody in UAE, we discussed about the legitimacy of child custody. And here, we discuss about the child custody lapse which can cause the custodian loses the right of custody of the child after separation of the marriage. There are requirements that must be met by the custodian, whether a man or a woman, as per Articles 142 and 143 of the Personal Status Law. The lapse of custody is also specified in a certain number of cases, under Article 152 of the very same law. In determining them, the lawmaker has taken into account the interest of the person in custody. Whenever this interest is at risk, the related party is to file a case requesting that custody is lapsed. In case of dispute, such custody is lapsed by a judgement.
Cases of Lapse of Custody: Article 152 of the Personal Status Law sets four cases in which the custodian loses the right of custody, as follows:
1. Breach of any of the conditions under Articles 143 and 144 of the Personal Status Law:
Article 143 has laid down general conditions that must be met y a custodian, whether a man or a woman, namely: sanity, being of age, honesty, ability to rear, maintain and take care of the person in custody, freedom from dangerous infectious diseases and absence of judgement in any anti-honor offence).
Article 144 puts two conditions if the custodian is a woman; that she is not married to a person who is extraneous to the person in custody and that she embraces the same religion of the person in custody. As for man, three conditions have been laid down: he has a suitable woman, he is not allowed to marry the person in custody if a female, and that he embraces the same religion of the person in custody.
Therefore, if any of these conditions is not met by the custodian from the beginning or in the course of custody, his/her right of custody shall lapse. Custody is denied to the insane or immoral, if the judge believes that immorality affects the interest of the person in custody. Also, custody is denied to a woman who has got married to an extraneous person which consummated marriage with her when the judge believes that the child’s interest will be maintained in her custody. Also, a man who has no woman to take over custody is denied custody.
2. If the custodian resides in a country where it is difficult to the parent of the child in custody to fulfil his duties:
The mere travel and moving of the custodian with the child in custody is not a cause of lapse of custody. To have custody lapsed, there must be a case where the parent cannot fulfil his duties, which is contradictory, in terms of the result, with the interest of the child in custody. Therefore, the lawmaker has set as a condition of lapse of custody that movement shall be for the purpose of permanent settlement and residence, not for the mere purpose of causing damage to the custodian in order take the child in custody. Good faith action is a major condition, that there is a justification for such movement and settlement, such as the case where the father moves to another country or place provided that the father shall procure for facilitating the travel and movement of the mother to that country to see the child in custody, and that movement to a far country to which the custodian cannot move, take car of the child in custody and return on the same day.
If the custodian is the mother, the lapse of custody entails, in such case, that the custodian is finally divorced. Hence, the right of revocable-divorcee is not lapsed by the movement of the father.
3. If the eligible custodian does not claim for custody for six months without excuse:
The purpose of the lawmaker by acknowledging the case is the stable custody of the child in custody so that the child does not remain under the threat of movement for over six months. If the custodian gets married to an extraneous person who consummates marriage with her and the parent of the child in custody becomes aware of such fact, without claiming for custody within six months from the date he becomes aware of that fact, his right shall lapse as long as he knows the cause of lapse, unless there is an excuse which prevents such claim, such as long time travel.
4. If the new custodian resides with the person losing custody for a cause other than physical disability:
Where the court decides to revoke the custodian’s right of custody for some cause as provided for under the law, it seeks to protect the child in custody. Hence, the new custodian’s residence with a person who has lost custody, for example for being insane, dishonest or not free from serious infectious diseases, does not maintain such an interest. The risk on the interest of the child in custody still exists and requires protection of the child in custody. The case is completely different if the lapse of custody is for physical disability and the disease which has prevented the custodian from taking care of the child in custody, there is no risk on the child in custody that the new custodian resides with her, as long as the new custodian takes care of the child in custody.