Child custody is an important consideration when spouses are getting divorced. While divorce in itself is a tough situation to be in, when there are children involved, it becomes a harder situation.
In this article, we will discuss the crucial points to be kept in mind for child custody, as mentioned under the Sharia-based Federal Personal Status Law of 2008. Meanwhile, it is important to note that custody has also come to be determined, under a different light, as per Federal Decree-Law No. 41 of 2022, which governs the non-Muslims in the UAE unless expatriates choose to apply their home country law.
- Who is a Custodian?
Under Federal Law No. 28 of 2005 (UAE Personal Status Law), a custodian is an individual concerned with the child’s day-to-day life and is involved in raising, taking care and bringing up the child. A guardian on the other hand, financially maintains the child, makes decisions regarding the child’s education, and upbringing and generally takes care of the child’s affairs.
According to Article 146 of the UAE Personal Status Law, the mother has the first right to be a custodian, followed by the father.
- Conditions to Be Met by a Custodian
Under Article 143, a custodian must meet certain specified conditions. These include having sound judgment, attainment of the age of maturity, fidelity, ability to raise the fostered child and provide for his maintenance and care, safety from dangerous contagious diseases and not previously condemned for a crime against honour.
In addition to the above, under Article 144 of the UAE Personal Status Law, if the custodian is a woman, then she should be of the same religion as the child and not be married to a man not related to the child unless the court decides otherwise in the interest of the child.
Article 145 of the UAE Personal Status Law states that if the mother is of a different religion than the child, the custody will be forfeited unless the judge regards the custody of the child with the mother in the interest of the child. However, in this case, the period of custody ends upon the child completing 5 years.
- Until When Can the Mother Have Custody?
The right of the mother to have custody of the child ends up with the male child reaching the age of eleven and the female child reaching the age of thirteen unless the court believes that extending the age of custody is in the children’s best interest. In this case, the extension may be till the male child reaches the age of maturity and the female, up to her marriage.
The father has the right to claim custody once the son and/or daughter reach the age of 11 and 13, respectively. Article 156 of the UAE Personal Status Law further states that the mother will continue to have custody where the child is of unsound mind or suffering from a disabling illness.
It may also be noted that the mother is entitled to the custody of the children during court proceedings unless the judge believes that such custody is not in the interest of the child.
- Custodian Fee and Other Financial Support
The mother may claim maintenance for the children.
The custodian of the child has the right to claim a custody fee from the children’s father in consideration of the performance of her services as a custodian of the children. Additionally, a father is required to financially support the boy until he finishes his education and the girl until she is married under Article 78. Temporary child support may also be claimed till the case is decided as per Article 68 of the UAE Personal Status Law.
Conclusion
The above only gives a brief snapshot of the various rules involving custodianship in the UAE. If you require legal advice regarding your child’s custody, reach out to our expert family lawyers today.
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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About the Author
Dr. Hassan Elhais publishes analysis of UAE family law matters, including child custody, parental responsibilities and arrangements affecting children. For readers researching a child custody lawyer in Dubai, his writing offers insight into the legal questions surrounding these topics. Explore his published work and practice-area information for further context.
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