The child custody law in the UAE incorporates the unique concept of ‘legal guardian’ and ‘custodian’. Wherein the father of the child is considered the ‘legal guardian’, and the mother is recognized as the ‘custodian’. The duties and rights assigned to legal guardians and custodians are distinct. The legal guardian of the child is tasked with the role of educating, protecting and providing financial support to the child. At the same time, the ‘custodian’ of the child is given the right to have physical custody of the child with her and is tasked with the responsibilities of providing daily care and nurturing to the child. Pursuant to Article 156 of the UAE Federal Law No. 28 and its amendments, a Mother is given the custody of the children up to a certain age which is, till the age of eleven for a male child and till the age of thirteen for a girl child.

What we have stated above are the general legal concepts concerning child custody in the UAE. In furtherance to the same, it should be understood that the UAE courts are duty-bound to examine each case by its merits. Therefore, it can be said that the final decision concerning child custody will be determined by a UAE court after taking into consideration the best interests of the child.

 

Characteristics a Custodian must have:

While determining or assigning custody rights, a court of law in UAE will consider the mother the primary custodian, especially when the age of the children is below thirteen for a girl and below eleven for a boy. However, despite the general rule, the court has the discretionary power to assign custody based on the welfare of the child and thus can assign the custody for the father or any other adult relative on a case to case basis. The courts are required to be flexible and to ensure that the child’s rights are protected.

Pursuant to Federal Law 28 of 2005 on personal status, a custodian should have the following characteristics in order to be considered suitable for the role:

Article (143)

The fosterer must satisfy the following conditions:

1) sound judgment;

2) having attained the age of maturity;

3) fidelity;

4) ability to raise the fostered child and provide for his maintenance and care;

5) safety from dangerous contagious diseases; and

6) not previously condemned for a crime against honour.

Article (144)

In addition to the conditions mentioned in the above Article, the fosterer must:

1) If a woman:

1. a) Be not married, in a consummated marriage, to a man not related to the fostered child, unless the court decides otherwise in the interest of the child.
2. b) Be of the same religion as the fostered child, with due compliance with Article (145) of this Law.

2) If a man:

1. a) He must have around him a woman able to be a fosterer.
2. b) Be related to the fostered girl with such close kinship prohibiting him to marry her.
3. c) Be of the same religion as the fostered child.

In short, the courts take into consideration first and foremost whether the given parent or relative proves capable of being allotted custody. When a parent has been negligent in their responsibilities to the child, and if by his or her actions or negligence have caused either physical or mental harm to the child, then the same becomes a ground for challenging the custody rights. The thumb rule is that the welfare of the child precedes every other legal provision, and the UAE courts have the discretionary power to make decisions in the best interests of the child.