CUSTODY OF CHILDREN IN THE UNITED ARAB EMIRATES

By

Prof. Gabriel Sawma

 

CODIFICATION OF THE PERSONAL STATUS LAW IN THE UAE

The United Arab Emirates codified their Code of Personal Status (Code) No. 28 in 2005 (Arabic, qanun al-ahwal al-shakhsiyyah). It was published officially in the Gazette under no. 439 of 11/30, 2005. Custody of the children is covered by articles 142-158 of the Code. It is largely based on the Maliki School of jurisprudence, and to a lesser degree on the Hanbali School, then Shafi’i, followed by Hanafi. The Code identifies the welfare of the child [maslahat al-hadana] when determining eligibility for custody and its duration. The general rule under Islamic Shari’a in the Sunni tradition is that all Islamic Schools of Jurisprudence hold that the mother, whether living with her husband or divorced, has the first claim to custody of her infant child. Nevertheless, these Schools differ with regard to the duration of female custodianship, and infancy is not always defined in terms of age limits.

 

CUSTODY PROVISIONS IN THE UAE CODE OF PERSONAL STATUS

Article 142 of the ode defines custody as following: “Custody is for providing the care, education and protection of the child in a way that does not contradict the right of the guardian.” This follows the approach of many countries whose family law is based on Islamic Shari’a, whereby custody of the infant remains with the mother, while guardianship is preserved to the father.

 

DURATION OF FEMALES CUSTODIANSHIP

Article 156 (1) of the Code states the following: “Female custodianship ends when the boy reaches age of eleven and female reaches the age of thirteen, unless the court, in the interest of the child, decides to extend [the custody of the mother] until the son reaches bulugh (puberty/maturity) and the daughter consummates her marriage.”

The traditional Schools of Jurisprudence in Sunni Islam, mother’s custody in Hanbali School runs from birth to the age of seven for both, boys and girls. At the age of seven, the Hanbali School gives the child the right to choose which parent he or she wants to live with. In the Maliki School, the son will remain in the custody of his mother until he reaches puberty (bulugh), whereas the girl remains in her mother’s custody until she consummates her marriage (dukhul). The Arabic term bulugh is not defined by the Maliki School, but most scholars believe it is the age of fifteen. The Maliki School does not confer a right of choice to the children. The Hanafi School determines mother’s custody at the age of seven for boys and nine for girls; whereas the Shafi’i gives the mother right to custody at the age of seven for both boys and girls.

 

ELIGIBILITY FOR CUSTODY IN THE UNITED ARAB EMIRATES

Article 146 of the Code of Personal Status states the following: “Custody is the right of the mother and then that of females within a prohibited degree of kinship [muharam], whereby maternal relatives have priority over paternal relatives taking into consideration the closest degree of kinship, with the father being the exception according to the following rank, and provided that the judge take into account the interest of the child.” According to article 146, the father comes second in a long list of entitled custodians.

 

QUALIFICATION OF THE CUSTODIAN

Article 143 of the Code specifies the requirements needed for the custodian of children to be qualified: puberty, sanity, health, ability to take care of the child, take care of the health of the child to avoid contagious diseases, and bee clean of any court judgments that is related to honor.

Article 144 contains two separate lists of requirement for women and men. Accordingly, a woman is prohibited from living with a husband who would not be legally prohibited from marrying the child whose custody is at issue. Article 144 also has a requirement that the mother should not re-marry, otherwise, she loses her right to custody. This last requirement does not apply to the husband, who has the right to marry up to four wives at the same time and keep the children under his custody. The husband is only barred from having custody of a girl to whom he does not have prohibited degree of kinship.

It is important to note that the prohibition of a female to be custodian if she remarries is not absolute; rather it can be waived whenever a continuation of female custody is considered to be in the best interest of the child.

 

NON-MUSLIM MOTHER LOSES CUSTODY OF HER CHILDREN WHEN THE CHILD IS FIVE YEARS OLD

If the mother of the child is not Muslim, she loses her custody of her own child unless the judge rules otherwise. However, article 145 states that in such a case, duration of the mother’s custody to her child ceases when the child reaches the age of five, and it does not matter if the child is a boy or a girl. In other words, if there is a divorce, or the husband dies, the mother is prohibited from having custody of her children unless the court decides otherwise. If the court decides to grant the mother custody of the children, she can only have the custody until the children reach the age of five. After that, custody goes to the father.

 

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and others.

Interviewed by:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

 

 

Email: [email protected]

Email: [email protected]

Tel. (609) 915-2237

 

You may read more articles on the law of marriage, divorce, custody of children and inheritance in the United Arab Emirates by visiting our website at:

http://www.uaedivorceinusa.com

http://www.gabrielsawma.blogspot.com

 

 

For more information on the author, please see Curriculum Vitae at this link:

http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

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