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Child Custody after Divorce in the UAE

Divorce happens. But conflicts that result over child custody add immeasurably to the already emotionally charged and tense atmosphere for parents, children and other stakeholders concerned. This is where the UAE’s constantly evolving Personal Status Law comes into play.

Defining Custody

According to Article 142 of the Personal Status Law of the UAE, ‘custody’ is defined as “keeping, bringing up and taking care of the child without interfering with the right of the guardian of the person”.

Differentiating between Custodianship and Guardianship

Although both fall under the umbrella of child care, the difference between the two deals more with scope rather than intent. While a Guardian must provide for the child financially and be responsible for major decisions regarding his life (education, marriage, immigration, etc.), a Custodian is the more present and routine carer for the child, taking care of his/her everyday needs. Typically, the former is the father while the latter is the mother. 

The Law on Custody

These laws are constantly evolving and increasing in scope and application to make them as comprehensive and relevant as possible. The child’s best interests are of utmost importance in the eyes of the law and courts when dealing with custody cases.

According to Article 146 (7) of the Personal Status Law, “Both the father and mother may seek the custody of the child if they have a dispute and the mother has left the conjugal house even if their conjugal relation is still existent. The judge shall decide on their application depending on the children’s interest.” 

Letter of the Law

According to Article 156 (1) of the UAE Personal Status Law, “The custody awarded to women shall terminate upon the child reaching the age of 11 years, if a male, and 13 years, if a female, unless the court deems extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest.”

Different laws for male and female children

In simpler terms, the law fundamentally differentiates between custody of the two genders. In the case of a male, the law dictates that the custody of a male child will be awarded to the mother until he reaches the age of 11. Flexibility is built into this law and dictates that individual circumstances and situations are taken into account when determining whether or not this period of time will be extended. 

The mother is also granted custody of a female child or children, but for a slightly more extended period, i.e., until the girl reaches the age of 13. After this time, as in the case of the male child, the case is examined carefully to determine whether or not the period can or cannot be extended. 

Essential Components of a Child Custody Agreement

Factors are taken into account

Factors that the Courts take into account when deciding custody are: 

Religion of the Parent 

Local courts prefer to grant custody to the parent who professes the same religion as the child, in case of inter-religious marriages. 

Income and Marital Status of Parent

The court also takes into account the socio-economic standing and marital status of each parent before making a final decision regarding custody. Although discretionary, the Judge may deny custody to the mother if she has remarried. 

Residency Status

When divorced parents live or plan on living in different countries, the responsibility of the Court increases manifold as custody rights will determine which child-parent relationship is fated to be long distance.  

Mental Well-Being and ‘Competence’ of Parents

Rulings of competence are subject to the discretion of the presiding Judge. He is likely to include immoral and/or un-Islamic behavior as constituting incompetence. Mental well being, on the other hand, takes into account the mental health of each party concerned and the child’s best interests.

Defining Maintenance

Fathers, by law, are responsible for child maintenance irrespective of the financial standing of either party (mother or father). The court takes into account the cost being incurred for the daily needs of the child that include education, sustenance, travel, clothing and even maids, if applicable. It then decides an appropriate amount to be paid for the purpose of maintenance. This is often one-third of the father’s income. 

Rules Applicable to Expatriates

Non-Muslim expatriates can request for the Personal Law of their home countries to be applied to child custody cases. This requires those laws to be legally translated and interpreted in totality by the Judge.

When Disputes Arise

When divorce cases are acrimonious, it almost always sets the tone for contested child custody. When this occurs, Article 146 (6) dictates that “The mother shall have the right of her children’s custody in case of a dispute over the custody unless the judge decided otherwise for the child’s interest.” 

When all is said and done, when life gives you lemons, consult a qualified child custody lawyer!

M. Al Khairy, LL.B. is a Senior Partner of HHS Lawyers in UAE. Practicing law for almost a decade, he has in-depth knowledge on UAE legislation with particular expertise on legal drafting, contract drafting, labor disputes, family law, and regulatory compliance for business organizations. Al Khairy also provides counsel on legal rights and obligations in the UAE to clients, including individuals and businesses subject to investigation or prosecution under Criminal Law by major regulators. Read more