Custody of Children After Divorce: UAE Personal Status Law

In accordance with Federal Law No. (28) of 2005 AD and the latest amendment by Federal Decree Law No. (52) of 2023 AD regarding personal status, custody of children goes to the biological mother of the child, and the father is the guardian. The law defines custody as the daily care of the child, without conflicting with the right of guardianship granted to the father. In all cases, the law stipulates that spending on the child in custody and supporting the child financially is the father’s responsibility. 

Custody and guardianship  

Custody and guardianship are two separate issues that are dealt with individually, as the division of the responsibilities of the child between the parents is not equal. In the UAE, the court puts the interest of the child first, and therefore the mother has custody of her children in the event of a dispute over custody, unless the judge decides otherwise in the interest of the child in custody. 

Article 156 of the aforementioned Personal Status Law stipulates that the age of custody ends when the male child in custody reaches eleven years of age and the female child in child custody reaches the age of thirteen years. If the court deems it in the interest of the child in custody to remain with the mother, it may extend the period until the male reaches puberty or the female marries. After that, the father has the right to request custody of the children. 

This blog is part of family and personal status services.

Conditions for the Custodian According to the Custody Law  

The Custody Law in Articles 143 and 144 of the Personal Status Law in its second chapter regarding custody state the following conditions that the custodian must meet 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. 
  6. Not previously condemned for a crime against honor. 

In addition to the conditions mentioned above, article the fosterer must. 

If the custodian is the woman

  • She shall not marry unless the court determines otherwise in the interest of the child in custody. 
  • She must be of the same religion as of the child in custody. However, if the custodian is a mother and she follows a religion other than the child in custody, her custody shall be forfeited unless the judge decrees otherwise in the interest of the child in custody, provided that the period of her custody of child does not exceed five years after the child completes five years, whether male or female, according to the text of Article 145 of the UAE Personal Status Law. 

If a man requests custody of  children

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

The mother has the right to extend the custody period until the male ends his studies, and the marriage of the female is a condition of proving good custody of the children through school reports and health records. The father has the right to request custody if he finds that the son has become too soft due to staying with the mother to teach him to be more responsible. The judge decides on the request taking into account the interests of the children. 

Travel Ban on Children in Custody 

According to the UAE Personal Status Law, the custodian may not travel with the child in custody outside the country except with the written approval of the guardian. Travel of the child in custody without the consent of one of the parents may fall under the heading of child kidnapping, and this act results in serious legal consequences. If one of the parents has doubts, it is permissible to request a travel ban to prevent the child from leaving the airport, and the matter is referred to the judge in the event of a dispute. In the same regard, Article 151 stipulates the following: 

  • If the custodian is anyone other than the mother of the child, the custodian may not travel with the child except with written permission from the guardian. 
  • The guardian, whether a father or anyone else, does not have the right to travel with the child during the custody period except with the written permission of the legal custodian. 
  • It is not permissible to revoke the custody of the adopted mother simply because the father moves to a country other than the country in which the custodian resides, unless the move is for the purpose of settling in, is not harmful to the mother, and the distance between the two countries is so long that it is difficult to see the child in custody and return on the same day by public transportation. 

Article 157 regarding travel procedures stipulates the following

  1. Without prejudice to the provisions of Article (149) of this law, the guardian has the right to keep the passport of the child in custody, except in the case of travel, in which case it is handed over to the custodian. 
  2. The judge may order that the passport be kept in the hands of the custodian if he sees intransigence on the part of the guardian in handing it over to the custodian in times of need. 
  3. The custodian has the right to keep the original birth certificate and any other supporting documents related to the child in custody, or a certified copy thereof, and she has the right to keep the identity card of the child in custody. 

Suspension of Guardianship Rights 

It is permissible to take away or suspend all or some of the rights of guardianship with respect to those covered by the guardianship in four cases, namely: 

  • If the guardian is sentenced to permanent or temporary hard labour. 
  • If the guardian is convicted of rape or indecent assault. 
  • If the guardian is convicted of crimes of endangering children, or if the person endangers the health, safety, morals, or upbringing of someone under their guardianship due to mistreatment, role modelling, or lack of care. 
  • If the guardian fails to meet the guardianship conditions. 

According to Article 152, the custodian’s right to custody is forfeited in the following cases 

  • Derogation to one of the conditions stated in Articles (143) and (144). 
  • In case the fosterer elects a domicile in another city thus making it difficult for the tutor to attend to his duties. 
  • Should the person entitled to fosterer keep silent and do not claim this right for a period of six months without excuse. 
  • Should the new fosterer live with the one whose fosterage has been forfeited for a reason other than physical disability. 

Order of Priority for Custodians  

  1. Article 146 of the Personal Status law fosterage of the child is right to the mother then to the females with in the prohibited degrees of kinship, giving preference to those from the mother’s side over these from the father’s side taking into consideration the closest degree from both sides with the exception of the father and the judge shall in his decision consider the interest of the fosterer child in deciding who is the fosterer the following order shall be observed: 
  • the mother. 
  • the father. 
  • The grandmother from the mother’s side and upwards. 
  • The grandmother from the father’s side and upwards. 
  • The Sisters giving preference to the full sister, then to the stepsister from the mother’s side then the stepsister from the father’s side. 
  • The daughter of the full sister. 
  • The daughter of the stepsister from the mother’s side in the same order the sisters. 
  • The Aunts from the mother’s side in the same order as the sisters. 
  • The daughter of the stepsister from the father’s side sister’s daughter. 
  • The daughter of the brother in the same order as the sisters. 
  • The Aunts from the father’s side in the above order. 
  • The mother’s aunts from the maternal side in the above order. 
  • The Father’s aunts from the maternal side in the above order. 
  • The Mother’s aunts from the paternal side in the above order. 
  • The father’s aunts from the paternal side in the above order. 
  1. Where no fosterer is found among the above women, or if none is qualified, fosterage shall pass to the male agnates, in the same order followed in inheritance, giving preference to the paternal grandfather and his ascendants (provided the sequence is not interrupted by a female ascendant) over the brothers.
  1. If none of the above exist, the right to fosterage passes to the males, within the prohibited degrees of kinship with the child other than the agnates, in the following order: the maternal grandfather, the stepbrother from the mother’s side, the son of the maternal stepbrother, the unilinear uncle from the father’s side, then the maternal uncles by giving preference to the consanguineous, then the unilinear uncle (his mother’s stepbrother) from his father’s side, then the unilinear uncle (his mother’s stepbrother) from his mother’s side.
  1. Should fosterage be refused by those entitled, male or female, the right passes to the next entitled who shall be notified thereof by the judge and if he refuses or keeps silent for fifteen days, the right passes to the next in rank.
  1. Under all circumstances, is not entitled to fosterage, in case of difference in sex, whoever is not within the prohibited degree of kinship with the child, whether male or female.
  1. Unless the judge deems in the interest of the fostered child, the mother, in case of litigation, is entitled to fosterage.
  1. In case of difference between the spouses and where the mother leaves the conjugal domicile, even if the bond of marriage has not been dissolved, the mother or the father may apply to have the children join him/her and the judge shall decide in accordance with the children’s best interest.

If custody is denied to the woman or man who deserves it, the right passes to the next person, and the judge informs him of that. If he refuses or does not express his opinion within fifteen days, the right passes to the next person as well. 

In all cases, a person who is not a relative of the child, whether male or female, is not entitled to custody in the event of a difference in sex. 

The mother has custody of her children in the event of a dispute over custody, unless the judge decides otherwise in the interest of the child in custody. 

Both the mother and the father may request the addition of the children to him if there is a dispute between them and the mother leaves the marital home, even if the marriage exists between them. The judge shall decide on the request, taking into account the interest of the children. 

Disclaimer

The opinions expressed in this blog are those of the respective authors. ATB Legal does not endorse these opinions. While we make every effort to ensure the factual accuracy of the information provided in our blogs, inaccuracies may occur due to changes in the legislative landscape or human errors. It is important to note that ATB Legal does not assume any responsibility for actions taken based on the information presented in these blogs. We strongly recommend verifying information from official sources and consulting with professional advisors to ensure its accuracy and relevance to your specific circumstances.

About ATB Legal

ATB Legal is a full-service legal consultancy in the UAE providing services in dispute resolution (DIFC Courts, ADGM Courts, mainland litigation management and Arbitrations), corporate and commercial matters, IP, business set up and UAE taxation. We also have a personal law department providing advice on marriage, divorce and wills & estate planning for expats.

Please feel free to reach out to us at office@atblegal.com for a non-obligatory initial consultation.

by Reda Farahat Karawan

Reda has more than 15 years of legal practice to his credit, and has been practicing law in the UAE for about 10 years, focusing on Arabic language litigations.

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