UAE: Custody and Guardianship of Children in Muslim Marriages

Understanding the intricacies of custody and guardianship in the UAE can be as complex as it is crucial. In this dynamic legal landscape, Federal Law No. 28 of 2005 for Personal Status, known as the "UAE Personal Status Law," plays a central role in shaping family matters. This law provides a structured approach to custody and guardianship, especially in Muslim marriages, defining clear roles for parents to ensure the welfare of children.

Custody vs. Guardianship: What’s the Difference?

In the UAE, the terms "custody" and "guardianship" are not interchangeable. Here’s a simple breakdown:

• Custody: This involves the daily care and physical wellbeing of the child. Typically, this role falls to the mother. She is responsible for managing the child’s everyday needs, from health care to daily routines.
• Guardianship: This refers to overseeing the child’s financial needs and major decisions such as Education, Healthcare. The father usually takes on this role, ensuring that the child’s future is financially secured and their major life decisions are thoughtfully managed.

Key Custody Milestones

The law outlines specific ages when custody arrangements might change:

• For Boys: Custody usually remains with the mother until he turns 11.
• For Girls: Custody typically stays with the mother until she reaches 13.

After these ages, the father, as the guardian, might be granted custody. However, the courts always prioritize the child’s best interests, generally favouring continued physical custody with the mother unless significant reasons suggest otherwise.

Who Qualifies as a Custodian?

The UAE Personal Status Law sets clear criteria for those seeking custody. Here’s what’s required:

• General Requirements:
  • Rational and Mature: The custodian should be a mature individual who has reached puberty.
  • Honest and Capable: They must be capable of providing proper care.
  • Free from Infectious Diseases: The custodian must be in good health.
  • No Criminal Convictions: They should not have a history of honor-related crimes.
• For Mothers:
  • Remarriage: If a mother remarries, she may lose custody unless the court decides otherwise based on the child’s best interests.
  • Religious Affiliation: She should share the same religion as the child.
• For Fathers:
  • Support System: A suitable female relative should be available in the household to assist with childcare.
  • Religious Affiliation: He should share the same religion as the child.

Extensions and Joint Custody

Mothers have the option to request an extension of custody until their son completes his education or their daughter gets married. They must provide evidence demonstrating their suitability, such as school performance and health records.

Fathers can also seek custody if they believe the child’s development is being adversely affected by the mother’s care. The court will evaluate such claims based on what’s best for the child.

Sole Custody Scenarios

Sole custody may be awarded to a father if the mother is found unfit to care for the child. For this to happen, the father must prove that the mother is incapable of providing effective care and that he possesses the necessary qualities such as sound judgment and the ability to meet the child’s needs.

Conclusion

In summary, the UAE’s legal framework for custody and guardianship strives to balance the roles of both parents while prioritizing the child's welfare. The system is designed to adapt and evolve, reflecting contemporary needs and supporting both Muslim and non-Muslim families in the UAE. By clearly defining roles and responsibilities, the law aims to provide a stable and supportive environment for children, ensuring their best interests are always at the forefront.

(The writer is a paralegal specializing in family law at the Dubai-based NYK Law Firm.)

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