Family laws in the UAE, which have now come to be separate for Muslims and non-Muslims, speak about the child’s best interests repeatedly, to which I will be referring in this blog, to determine which parent is awarded custody. In this particular area of law, the Court is awarded a great deal of discretion, but its decisions must remain consistent. Normally in child custody cases, the Court consistently award custodianship to the parent that will best serve the child’s needs.
UAE family courts are known to value children’s interests in custody cases. In a case filed in the UAE, a divorced father from the United States, living in the U.A.E., was hoping the courts would find it in his 16-month-old daughter’s best interests to stay with him, as opposed to being sent to her mother in the US. Although the mother had a court order from a US judge giving her custody, U.A.E. courts do not enforce foreign custody orders. The U.A.E. reasons that it would be a resignation of its responsibilities to a child under its protection to surrender the child’s fate to a foreign court, whose system might be unfavourable to the child’s welfare. (This type of reasoning is most prominent in international child abduction cases.)
Although judges typically grant decisions based on the child’s needs, the laws set out for family issues already maintain the importance of the child’s best interests. For example, Article 156 of the Personal Status Law governing Muslims states that the custody of a child shall go to the mother, until 11 years of age for a boy and 13 years of age for a girl.
Yet, in that same clause, the law sets out that this circumstance can change if the court determines something else is best for the child. The court’s discretion is dependent on the circumstances of each case. Or taking Article 10 of the non-Muslim Civil Personal Status Law, any request to deny the other spouse the right to joint custody will be determined taking into account the best interests of the child.
Even laws that may seem counterproductive to the child’s best interests at times are based on the condition that the circumstance favours the child. For example, Article 144 of the Personal Status Law states that a mother that has remarried shall not be awarded custodianship; however, this clause is conditioned on the fact that the court may deem it to be in the child’s interests to stay with the mother even though she has remarried.
The U.A.E. family laws are the most complex in the legal system; however, they allow a certain range of flexibility for a judge to make orders that best meet the needs of the child.
Legal Update:
The above information might not apply if both parties are non-muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of them wanted to apply his/her home country's law in the UAE. To know more information about this law, please feel free to click this link.
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