When a parent suspects that they may lose custody of their children due to a divorce, they may attempt to move the children away from the other parent or from their habitual residence without the latter’s consent. This practice is referred to as parental abduction. In the UAE, due to the presence of a large community of expatriates, parental child abduction can be carried out with relative ease, as expatriate parents tend to have access to resources in their home countries. This results in parents moving back to their home country with their children after a divorce without the consent of the other party. The act is considered unlawful under UAE as well as international law.
Child Custody
Child custody refers to the protective care of a child. Article 112 of Federal Decree Law No. 41 of 2024 regarding Personal Status (“New Law”) defines custody as the care, upbringing and protection of a child and attending to their interests in a manner that does not conflict with the guardian’s right to guardianship. The UAE laws continuously stress the importance of the presence of both parents in the upbringing of the child to contribute to the child’s best interests.
As per 114 of the New Law, post-divorce, the custody of minor children is granted to the mother of the children, making her in charge of the daily care of the children. The father of the children is given guardianship over the children, making him responsible for the financial upkeep of the children. Article 112 also grants educational guardianship of the child to the mother.
Until the issuance of the New Law, the custody age with the mother was until the male child turned 11 and the female child turned 13. However, with the enforcement of the New Law, under Article 123, the custody age of children has been raised to 18, regardless of whether the children are male or female. Article 122 states that the children will be given the choice of which parent they wish to reside with, once they attain the age of 15, provided that the court does not consider their choice to be detrimental to their best interests.
Forfeiture of custody
Under Article 115, the right to custody of a mother may be forfeited in the following scenarios
- If she fails to fulfil her duties as a custodian
- If she intends to reside in a place that may be harm the interest of the child
- If she resides with someone who has been disqualified to be a custodian for reasons other than incapacity due to health
- If she commits acts that are harmful for the child.
A person entitled to custody must claim it within one year from the date they become aware of their right to custody. It is pertinent to note that according to Article 120, mothers who leave their marital home due to a dispute or for any other reason do not automatically lose their right to custody over her children.
Although the mother is given custody over her children, as stated in Article 112(1), the right to custody must not be in conflict with the guardian’s right to guardianship. The law is very clear that the custodian must not attempt to curb the rights of the father in any way unless it is in the best interest of the child. If so, the mother will be required to obtain a court order in this regard.
Provisions to safeguard the rights of the Father or the Guardian
The New Law has retained certain provisions and added new provisions that seek to ensure that a child is not taken away from the father without his consent.
Passport of the child in the custody of the father
Under Article 117 of the New Law, the father has the right to hold the passport of his children while the mother may retain the identification documents of the children. However, if the mother is seen to misuse the identification documents or use them for travel without the consent of the father, Article 124 states that the documents may be requested to be handed over to the father.
Penalties for violation
Under Article 251, if a parent unjustly refuses to hand over documents of the child to the person who is entitled to hold the documents, he/she may be imprisoned or fined between AED 5000 and AED 100,000.
Furthermore, a custodian who takes the child out of the country without the permission of the father will be imprisoned or fined between AED 5000 and AED 50,000.
Conditions for travel with a child
The New Law does allow for travel with a child under custody, albeit subject to certain conditions. Under Article 116, a custodial parent may travel with the child outside the country, with the written consent of the other parent/guardian. The court may also grant permission for travel with a child, for up to 60 days, with the option of extension if the travel is for medical treatment, urgent necessity, or in the best interest of the child.
Conclusion
It is clear as per Articles 114 and 123 of the New Law that in the event of a divorce, the mother will most likely be given custody over her children until the children attain the age of 18, unless they choose to live with their father once they attain 15 years of age, or if the mother is considered unfit by the court. However, the grant of custody rights to the mother does not negate the rights of the father who is entitled to his rights as the guardian of the children. The UAE laws continue to hold the best interests of children paramount while deciding their living situations after a marriage.
Disclaimer:
The above information might not apply if both parties are non-Muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-Muslim expat residents in case none of them wanted to apply his/her home country's law in the UAE. To know more information about this law, please feel free to click this linkCopyright © of this article is retained by the author and/or other copyright owners. We explicitly grant you permission to download a copy, without any alteration, of this article for personal non-commercial research or study, without prior permission or any charge. This article can be utilized on your website or for marketing, however, we grant you permission to host this article on your website and no other rights. This content should not be altered in any way or sold commercially in any format without prior permission of the copyright holder. During reference of this article, full biographic details entailing the name of the author, his designation, the institute and the publishing date of the article shall be provided.
