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Many family law cases in the United Arab Emirates follow Federal
Law No. 28 of the year 2005 (UAE Personal Affairs Law), to which I
will be referring to 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 it is important that their
decisions remain consistent. Normally in child custody cases, the
Court's consistently award custodianship to the parent that
will best serve the child's needs.
U.A.E. family courts are known to value childrens' interests
in custody cases. In a case recently filed in the UAE, a divorced
father from the United States, who is currently living in the
U.A.E., is hoping to the courts will 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 has 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 unfavorable 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 Affairs Law, 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 145 for example, in which a mother shall not have
custody of the child if she is of a different religion, the clause
then gives the judge discretion to award the mother custodianship
if she will best fulfill the child's needs.
Even laws that may seem counterproductive to the child's
best interests at times are based on the condition that the
circumstance favors the child. For example Article 144 of the
Personal Affairs 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 of the most complex in their legal
system; however, they allow a certain range of flexibility for a
judge to make orders that best meet the needs of the child.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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