Joint Custody as Default Rule Under UAE Personal Status Law: A Child-Centred Shift in Post-Divorce Family Justice

The UAE Civil Personal Status Law marks a decisive shift towards a child-centric framework in family law by establishing joint custody as the default position following divorce. This approach reflects a clear legislative intent: the dissolution of a marriage must not deprive a child of the care, presence and guidance of either parent.

Legislative Rationale Behind Joint Custody

Federal Decree-Law No. 41 of 2022 on Civil Personal Status, together with its Executive Regulations, proceeds on the premise that parenthood endures beyond the breakdown of a marital relationship. While divorce brings spousal obligations to an end, it does not diminish parental responsibility.

By adopting joint custody as the default mechanism, the law ensures that:

• Children are not alienated from either parent;
• Parental disputes do not override the child’s welfare;
• Both parents remain actively involved in upbringing, decision-making and emotional support.

Crucially, the law draws a deliberate distinction between marital incompatibility and parental fitness. The failure of a marriage, irrespective of fault, is not a lawful basis to exclude a parent from a child’s life.

Best Interests of the Child as the Governing Principle

The guiding consideration in all custody determinations remains the best interests of the child. Joint custody is designed to preserve emotional stability and continuity by enabling children to maintain meaningful and sustained relationships with both parents.

The law proceeds on the presumption that both parents are capable of discharging their parental duties, and that the continued involvement of each parent serves the child’s psychological and developmental well-being. Parental hostility or lack of consensus, in itself, does not rebut this presumption.

Departure from Joint Custody: When Sole Custody May Be Considered

While joint custody is the general rule, the law recognises that exceptional circumstances may justify an award of sole custody. A parent seeking sole custody bears a substantial evidentiary burden and must demonstrate that joint custody would be contrary to the child’s welfare.

Courts will consider removing a parent from joint custody only where clear, credible and legally admissible evidence establishes circumstances such as:

• Exposure of the child to physical, emotional or psychological abuse;
• Neglect, abandonment or a persistent failure to fulfil parental obligations;
• Serious behavioural, psychological or health conditions impairing parental capacity;
• Unsafe or unsuitable living conditions;
• Proven conduct that poses a real and ongoing risk to the child’s safety or well-being.

Mere allegations, parental discomfort or post-divorce animosity are insufficient. The judiciary requires objective and substantiated proof, often supported by official reports, expert assessments or final judicial findings.

A High Threshold Reflecting Legislative Intent

The threshold for awarding sole custody is intentionally high. The law treats the exclusion of a parent from custody as a measure of last resort, to be exercised only where the child’s interests cannot be adequately protected through joint custodial arrangements.

This approach ensures that custody proceedings do not become an extension of marital conflict and that children are not inadvertently penalised for the breakdown of their parents’ relationship.

Conclusion

The UAE’s joint custody framework reflects modern international standards in family law. It reinforces a fundamental principle: a child’s right to both parents transcends the success or failure of a marriage.

 

Joint custody is not about balancing parental rights; it is about safeguarding the child’s right to stability, continuity and care from both parents, even in the aftermath of divorce.

 

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