The law in the UAE that is applicable in the matters of children and their custody is the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law). The law specifies that the decisions made for the child should be in his or her best interest. These laws are based upon the principles of Islamic Sharia. In the UAE, they apply to Muslim and non-Muslim expatriates, and national families in the same way.
Being an expat in the UAE, one might miss a support system in the country as there is no family locally. In the event of the demise of parents, the arrangements for child custody must be decided. Even at the time of school admissions of the children the emergency contacts are supposed to be mentioned other than parents.
Custodian and Guardian:
The custody laws in the UAE assign different roles to mothers and fathers as custodians and fathers. A guardian of a child financially maintains the child, makes important decisions about the child’s education and upbringing, and generally takes care of the child.
The custodian is the one who is concerned with the child’s daily life. The custodian actually holds the physical custody of the child on a daily basis and must raise and take care of the child. It is possible for one parent to be a guardian as well as a custodian. Generally, the mother is awarded custody of children up to a certain age, whereas the father is always considered the guardian. However, the Court has an obligation to make orders that are in the child’s best interests.
Parents must appoint guardians. Guardians are individuals who would take responsibility to ensure safety, security and wellbeing, and to make all important decisions on behalf of the children, in the absence of the parents. As per the type of guardian, the guardian may be selected for a fixed period of time, or it may continue until the children become adults.
Temporary and Permanent Guardians:
Temporary guardians are those who take care of children immediately after the death of their parents. They are responsible for activities such as collecting children from school and providing them with a safe place to stay until the permanent guardians can take their responsibility. Temporary guardians should be local residents. Permanent guardians are usually relatives who get selected to take care of the children in the long term. They will be responsible for major decisions of the children such as place of residence and school to attend.
Wills and Guardianship:
The legal method for appointing guardians for non-Muslim minor children is by mentioning the same in a registered Will. Will can be registered through 2 modes, the DIFC Wills Service Centre (DIFC WSC) and the Abu Dhabi Judicial Department (ADJD). Both modes allow non-Muslim parents to select both temporary and permanent guardians for their children. It also allows parents to state decisions regarding the distribution of financial assets after their death.
If parents wish, the DIFC WSC also offers the option of registering only Guardianship. Parents are also allowed to register a Will, which allows both temporary and permanent guardians to be appointed, but which cannot include reference to assets. The registration of guardians is important as the appointed guardians would formally be recognized to act on behalf of the children.
According to Article no. 180, Personal Status Law, the guardian must meet the following conditions:
Legal age
Sound-minded
Honest
And capable of performing the guardianship requirements
As per the law, the mother of the child is a “custodian”, and the father of the child is a “legal guardian”. As per the UAE laws, the mother is given custody of the children up to the age of 11 for a male child and till the age of 13 for a girl child and further extensions are possible after the approval of the Court.
Once the child reaches the age of puberty, which is defined as being 13 for a girl and 11 for a boy, the father can make an application for transferring custody to himself. The judge can decide if the father is competent to have custody of the children based on the merits.
The guardianship of the child shall be awarded primarily to the father and after to the agnates from the father’s side, as per the order of heirship. In case there is no person entitled to guardianship, the court shall appoint a guardian of the person from the minor’s relatives.
To challenge the custodianship of the mother, in the matter of divorce, it should be established before the Courts that she is unfit and thereby custody should be revoked. In order to establish that a parent is ‘unfit,’ it must be conclusively proven. The custody of a parent can be challenged on a few grounds such as not being of sound mind, suffering from any infectious disease or being sentenced for a serious crime.
It is important to note that though the general guidelines are provided, the UAE courts are obligated to take the decision that is in the best interest of the child as per article 4 of the law. The competent authorities shall work to achieve the same by taking necessary measures, such as:
Ensuring to meet the moral, psychological and physical needs of the child under the special circumstances of his age, health and family surroundings, and particularly his right of custody.
Giving the child priority of protection, care, rescue and guidance in cases of emergencies, disasters, armed conflict and any crime committed against him.
Not harming the child psychologically in all the stages of collecting evidence, investigation, and trial, whether the child is a party to the case or a witness.
The custodian is not allowed to relocate with the child to another city within the state if such movement affects the child’s education or is causing any harm to the other parent or makes him/her suffer any unusual hardship or bear the cost of visiting the child. Such situations put the custodian at risk of losing the child’s custody.
The custodian can travel abroad with the child, as long as there is the guardian’s prior written consent. If the guardian arbitrarily refuses to give such permission, the matter can be taken before the courts for the judge to decide. Also, the guardian must obtain the custodian’s written consent before travelling with the child outside the UAE. So, both the custodian and the guardian have the same rights and obligations here.
