Overview of the Law
The personal status matters in the UAE are regulated by the Federal Law No. 28 of 2005 (UAE Personal Status Law), as amended and Federal Law No. 5 of 1985 on Civil Transactions Law, as amended. Additionally, Emirates of Abu Dhabi has issued a new law called the Abu Dhabi Law No. 14 of 2021, which mainly applies to non-Muslims based in Abu Dhabi. The UAE Personal Status Law continues to apply to Muslims in Abu Dhabi.
Custody and Guardianship under the UAE Law
A custodian is an individual who takes care of the child on a day-to-day basis and has physical custody of the child. 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 UAE Personal Status Law, there is no specific concept of joint custody and according to Article 146 of the UAE Personal Status Law, the mother has the first right to be a custodian, followed by the father.
Having said the above, under the Abu Law No. 14 of 2021, the parents have equal rights regarding the child custody until the age of 16 years old, and after this age the child shall have the right to choose between his parents. But this is applicable only on non-Muslims in Abu Dhabi and not in the UAE.
Conditions to be met by a custodian under the UAE Personal Status Law
Under Article 143 of the UAE Personal Status Law, a custodian must meet certain specified conditions. These include having sound judgement, attained 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 honor.
In addition to the above, in accordance with 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.
Till when can the mother have custody?
The right of the mother to have custody of the child ends upon 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.
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.
Conclusion
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 and accordingly, it would be wise to discuss these matters with a family law expert.
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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