After the divorce, though the couple legally separated from each other, the interest of the child remains at stake. It is very important to keep the child in a safe and secure environment with an opportunity to grow. Here, the concept of child custody comes into play.
The Federal Law No. (28) of 2005 (UAE Personal Status law) governs all the matters related to child custody in the country. Custody is defined under Article 142 of the same law, which refers to keeping, bringing up, and taking care of a child without interfering with the guardian’s right. The law regarding child custody is constantly evolving. It has been well settled that the interest of the child will be of utmost significance while dealing with such cases. There is a natural presumption that the custody of the child will vest with the mother. (Article 146)
However, as per Article 146(7) of the Personal Status Law, if the mother has left the conjugal house, then both father and mother may seek the custody of the child. The judge will adjudicate the case keeping in mind the best interest of the child. In the UAE Personal Status law, the custody awarded to a female shall be terminated after reaching a particular age. This age is 11 years for male children and 13 for females. However, the court may extend this period depending upon the particular circumstances of the case. For females, the custody can be extended up to her age of marriage. (Article 156)
Factors determining the Child Custody
The UAE personal law stipulates some factors that should be taken into account while awarding a child custody:
- Income and Marital Status of the Parents
Income is one of the most crucial factors as the child is entitled for a better economic life. The parent who is financially sound has a better chance to have the custody of the children. Further, the marital status is also taken into consideration. If any parent has remarried, it is assumed that he has stepped into a new path of life, and the child’s custody should not be granted to him.
- Religion of the Parents –
In case of inter-religious marriages, the court generally grants custody to the parent who possesses the same religion as the child. This helps the child to adopt his/her religious practices.
- Residency Status
If the parents are planning to live in different countries after divorce, the responsibility of the court increases manifold while granting child custody. The child not only had to travel long distances but he also needed to adopt a new environment or environment.
- Mental Well Being and Competence of Parents
In Child custody cases, the judges have a lot of discretionary powers to exercise. The immoral or un-islamic conduct may be treated as incompetence. Further, the mental health of both the parents are also taken into consideration.
In UAE law, irrespective of the financial standing of the parties, the obligation of providing maintenance to the child always lies on the shoulders of the father. The maintenance amount is calculated keeping in mind the daily requirements of the child including education, sustenance, travel, clothing, etc. Generally, it is 1/3rd of the father’s income.
One of the special characteristics of UAE personal status law is that non-muslims can ask the court to apply their home countries laws to child custody cases.
In short
The divorce is the end of a settled marital relationship and it is quite acrimonious. When this occurs, a child suffers great mental agony. So, keeping in mind the best interest of the child, the court awards the custody