Awatif Mohammad Shoqi Advocates & Legal Consultancy | View firm profile
In the UAE, custody of children following the divorce of Muslim parents is governed by Federal Law No. 28/2005 on Personal Status Law. A common concern for fathers is whether they can obtain custody after their ex-wives remarry. Understanding the relevant legal provisions and considerations is crucial for addressing custody disputes.
Legal Framework under the Federal Law No. 28/2005 on Personal Status Law
The UAE Personal Status Law establishes guidelines for custody that include the care, education, and safeguarding of the child. The law outlines specific roles for each parent: the mother typically has the first right to custody, followed by the father. The custodian is responsible for the day-to-day care of the child, including aspects such as feeding, clothing, and providing emotional support. On the other hand, the guardian, usually the father, is responsible for offering financial support and overseeing the child’s upbringing.
Custody Rights and Conditions
Articles 142 to 156 of the UAE Personal Status Law outline the rights and responsibilities of custodians, emphasizing the paramount importance of the child’s best interests. To be eligible as a custodian under Article 143, individuals must meet several specific conditions, including possessing sound judgment, having attained maturity (defined as reaching the age of maturity), establishing fidelity, and having the capability to adequately raise and care for the child. Additionally, the custodian must ensure safety from dangerous contagious diseases and must not have any prior convictions for crimes against honour.
Furthermore, Article 144 addresses the custodian’s religion. If the custodian is a woman, she must share the same religion as the child and should not be married to a man who is not related to the child unless the court decides otherwise in the best interest of the child.
Article 145 states that if a custodian is of a different religion than the fostered child, her custody rights may be forfeited unless the judge deems otherwise, particularly if the fosterage period ends upon the child completing five years of age.
Right to Custody (Article 146)
The right to custody primarily belongs to the mother, followed by the father and then maternal relatives. However, the law emphasizes that custody decisions must always prioritize the child’s best interests.
Mother’s Custody After Remarriage
If the mother remarries, her right to custody remains unless the new husband presents a risk to the child’s well-being. Courts may evaluate the circumstances, including the mother’s ability to provide a stable environment.
Father’s Right to Custody
Fathers have the right to request custody of their children, particularly if he can prove that the mother’s new marriage negatively affects the child’s welfare. In evaluating such requests, the judge may consider several key factors, including the father’s ability to provide for the child, the stability and suitability of his living conditions, and his overall emotional and financial stability. These considerations are essential in determining whether a change in custody is in the best interests of the child, ensuring that the child’s welfare remains the paramount concern in custody disputes. Furthermore, Articles 143 to 144 specify conditions that must be met by a custodian, including sound judgment, maturity, and the ability to care for the child. These criteria apply to both mothers and fathers.
Judicial Discretion (Article 156)
Courts have the discretion to extend the mother’s custody rights if it is deemed in the child’s best interest, particularly if the child is of unsound mind or has a disability. According to Article 156, the mother is entitled to custody of the child until the male child attains 11 years of age and the female child attains 13 years of age.
It is important to note that the law provides the father with an opportunity to claim custody of the child or children once the male child reaches 11 years of age and the female child reaches 13 years of age. The court may grant sole custody to the father if it determines that the mother is unfit to care for the child and the father is better suited to provide for the child’s best interest. The father bears the responsibility of establishing before the court that the mother is unfit to care for the child. The court has the authority to modify the custody arrangement if it deems it necessary for the best interests of the child.