Under Federal Law No. 28 of 2005 Personal Status Law, a custodian and a guardian are two different concepts. A custodian is an individual who takes care of the child on a day-to-day basis and has physical custody of the child. The mother is considered to be a natural custodian of the child till the daughter turns 13 and the son turns 11 unless she is unfit to take care of the children. The father will have the right to claim custody only after the children cross the age threshold.
On the other hand, a guardian is an individual who is responsible for providing financial support, taking care of education, travel and general upbringing of the children. Under the Personal Status Law of 2005, the father is usually the guardian of the children.
This distinction between custody and guardianship has not been mentioned under the newly enacted Federal Decree-Law No. 41 of 2022 On Civil Personal Status. This new personal law applies to the non-Muslims of the UAE and puts the concepts of custody and guardianship under the same umbrella.
Mutual Agreement on Custody of the Children under the Personal Status Law of 2005
Under the Personal Status Law of 2005, the parents can enter into a mutual agreement regarding custody arrangements for the children, which could set out the rights and obligations of each parent. The parties, with the help of their legal counsel, can draft and finalize such an agreement.
In particular, the agreement could record who the custodian of the children is, the visitation rights of the parents, including any overnight stays, visits for special occasions like Eid, Christmas, birthdays, etc., financial obligations of each party related to the expenses of the children, travel of the child within and outside the country including any requirement of consent, permanent relocation of the child, amongst others. The best interests of the child have to be the core consideration while drafting and finalizing this agreement.
How do I make the Custody Agreement binding in the UAE?
In order for the parents to make the custody agreement binding, it is ideal for the parties to get it executed before the Family Guidance Department of the Family Courts. The Family Guidance Department is a special department in the UAE family courts, located within the premises of the family courts. This department is responsible for assisting in the execution of such agreements.
The broad process to be followed in executing the custody agreement before the Family Guidance Department is as follows:
- A file will be opened before the Family Guidance Department. This is usually undertaken by the legal counsel of either of the parties. Certain documents will be required to be submitted along with the application to open the file.
- Once the file has been opened, a hearing date will be set. If the parties have not finalized the agreement by the date of the hearing, a later date will be issued. If the agreement has been finalized by the next date, it will be signed by the parties before the Family Guidance Department.
Having said the above, it is crucial to note that to make an application to execute a custody agreement in the UAE, at least one of the parties needs to be a resident of the UAE.
One of the biggest advantages of executing the custody agreement before the Family Guidance Department is that in the event of a dispute or breach by a party, execution proceedings can be directly initiated by the non-breaching party based on the terms of the custody agreement.
Custody of the Children under the Civil Personal Status Law of 2022
As opposed to the Personal Status Law of 2005, there is no difference between custody and guardianship, and both parents are responsible for raising the child by contributing equally.
However, upon divorce, either of the parents can request the court to grant them full custody of the child, if they are not willing to execute an agreement in this regard.
Full custody can be achieved through an application which will be submitted to the court, stating the reasons for such a request. The best interests of the child are taken under consideration before the court adjudicates on matters related to children.
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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