What is meant by custody? Custody involves caring for the child, raising them, and attending to all their daily needs, including providing housing, food, medical care, education, and religious upbringing.

What is meant by the right of custody? The UAE law grants the right of custody primarily to the mother, provided it does not conflict with the father’s guardianship, who is responsible for providing financial support for the child. The mother’s custody continues until the boy reaches 11 years old and the girl reaches 13 years old, and it can be extended if it is in the child’s best interest.

Custody is primarily the mother’s right, as she is more entitled to her child than anyone else if she is fit for custody. It is narrated that the Rightly Guided Caliph Umar ibn Al-Khattab divorced his wife Umm Asim and wanted to take his child from her, but she refused. They disputed before the Rightly Guided Caliph Abu Bakr Al-Siddiq, who was the Caliph and judge at the time. Abu Bakr said to them: “Leave him with her, her scent, touch, and care are better for him than honey with you.” In this context, Judge Abu Bakr Muhammad ibn Asim Al-Andalusi Al-Gharnati said in his book “Al-Tuhfa”: “And giving it to women is more appropriate… because they are more compassionate in matters.” Jurists have stipulated that custody should be assigned to the mother, while guardianship in its two aspects, personal and financial, is assigned to the father. This approach was followed by Sheikh Khalil in his text. The protection of the child’s interest is entrusted to the judge’s discretion, as custody is a serious matter involving the responsibility of preserving a weak human being in the process of formation and growth, who is in dire need of care and attention. Therefore, certain conditions must be met for the custodian to be eligible for custody.

What are the conditions that must be met by the custodian?

 The UAE law stipulates several conditions that must be met by the custodian, including:

1. Sanity and maturity. 

The custodian must be mature, meaning they have reached the legal age of majority.

1. Integrity, honesty, and the ability to raise and care for the child. 

Integrity in language implies moderation in behavior, and honesty implies trust and truthfulness, which are qualities that translate into virtuous morals within society. Honesty cannot be achieved without integrity. If a person is upright, they can be honest. The upright person is one who is moderate in their behavior. The Maliki scholars say that there is no custody for a corrupt person, a drunkard, or someone known for adultery or forbidden entertainment. If corruption is not notorious, it does not invalidate custody. The custodian must be trustworthy with the child in terms of their person, mind, property, and religion. If the custodian is reckless and cannot be trusted with the child, they are not fit for custody. From a legal perspective, the condition of integrity requires that the custodian, for example, has not been previously convicted of marital infidelity or caught in a compromising situation that violates societal norms and Islamic principles, even if the criminal case was dropped. This is what the Federal Supreme Court has established. The custodian must also maintain the Islamic identity of the Muslim child under custody, providing an environment that helps reinforce the Islamic identity. These conditions, emphasized by jurists and legislators, place a significant burden on the judiciary to ensure that the custodian is fit to bear the responsibility of custody and has the ability to raise and protect the child.

1. Free from serious contagious diseases. 

Being free from serious contagious diseases means that the custodian must not have diseases that can easily be transmitted to the child and cause significant health harm. These diseases include, for example, tuberculosis, hepatitis, HIV/AIDS, and other diseases that can pose a risk to the child’s health.

1. Not previously convicted of a crime against honor.

The concept here is that someone who cannot be trusted with their own honor cannot be trusted with others, especially in terms of custody, to prevent potential harm to the child and the likelihood of the child imitating such behavior.

What are the conditions for losing custody? 

Custody can be lost in certain situations, such as:

• The custodian fails to meet one of the required conditions.
• The custodian moves to another country, making it difficult for the child’s guardian to fulfill their duties.
• The custodian marries someone who is not related to the child, unless the court determines that this does not affect the child’s best interest.

What is the order of custody according to the Federal Personal Status Law? 

If the mother is unable to take custody, the right transfers to the father, then to the maternal grandmother, then to the paternal grandmother, and so on according to the order specified in the law, always considering the child’s best interest.

What is the role of the court in custody cases? 

The court plays a crucial role in custody cases, evaluating the child’s best interest and making decisions based on that. The father can request custody if he believes the child needs different upbringing, and the judge will decide based on the child’s best interest and the facts of the case.

Both Islamic law and the UAE law agree that while custody involves the rights of three parties (1) the father, (2) the custodian, and (3) the child, the child’s right is the most important. The Islamic Sharia prioritizes the child’s right over the custodians’ rights. The court’s assessment of the child’s best interest is a factual matter that the trial court decides without oversight, as long as its judgment is based on sound and sufficient reasons and does not disregard the evidence presented in the case.

How is the child’s best interest determined? 

The child’s best interest in UAE law is determined based on several criteria aimed at ensuring the child’s well-being and growth in a safe and stable environment. Here are some factors the court considers when determining the child’s best interest:

1. Family environment: Evaluating the environment in which the child will live, including emotional and psychological stability and family relationships.
2. Health and safety: Ensuring the child will live in an environment free from health and physical risks.
3. Education and upbringing: Ensuring the child receives appropriate education and proper upbringing, including religious and moral education.
4. Social relationships: Maintaining the child’s relationships with extended family members and friends, ensuring they are not socially isolated.
5. Child’s wishes: In some cases, the court considers the child’s own wishes, especially if the child is old enough to express their opinion clearly.

The court always strives to prioritize the child’s best interest, ensuring that decisions made contribute to their healthy and sound development.

The higher courts have established that custody involves caring for, raising, and protecting the young child. The custodian, whether male or female, must be sane, mature, trustworthy, and capable of raising, protecting, and caring for the child. The primary consideration in custody is the child’s benefit. If a benefit is found in something, it must be pursued, even if it contradicts the guardian’s interest, because the child’s right to care and protection is paramount. The trial judge has the authority to assess the child’s best interest and the custodian’s eligibility without oversight from the Court of Cassation, as long as the judgment is based on sound reasons supported by the case’s evidence.

Can the court’s custody decision be changed?

 Yes, the court’s custody decision can be changed in UAE law if there are significant changes in circumstances affecting the child’s best interest. The default is to keep the child with the mother for as long as possible, as no one can replace a mother’s affection, and maternal instinct is stronger than any other caregiver’s compassion. However, this rule can be broken if it concerns the child’s best interest. Therefore, the judge has discretionary power in this matter and must prioritize the child’s best interest, especially in urgent cases based on the legal principles: “No harm and no harassment” and “Harm must be removed.”

Reasons for changing the custody decision (loss of custody): 

Reasons that may lead to changing the custody decision include:

• Changes in the parents’ circumstances, such as moving to a new place or changes in financial or health status.
• The child’s needs, if they change significantly, such as requiring special medical care or a change in the educational environment.
• The custodian’s behavior, if it is found that the current custodian cannot provide a safe and stable environment for the child.

The Abu Dhabi Court of Cassation has confirmed that, according to the Personal Status Law and its explanatory memorandum, custody is a right established primarily for the child’s benefit and is a duty on the parents that does not lapse by waiver but is prevented by obstacles and returns when those obstacles are removed. Article 143 of this law lists the conditions that must be met by the custodian, whether male or female, and Article 144 specifies additional conditions for female custodians and male custodians beyond the general conditions. If one of these conditions is not met, such as proven dishonesty, the right to custody is taken away from the person who had it. The custodian also loses the right to custody if they settle in a place where it is difficult for the child’s guardian to fulfill their duties, whether that place is inside or outside the country. Custody must not conflict with the guardian’s right to personal guardianship. Article 148 obliges the father and other guardians to look after the child’s affairs, discipline, and education, which means the custodian must not prevent the guardian from fulfilling their duties towards the child.

The Importance of Consulting a Specialized Lawyer in Family and Custody Cases

Consulting a specialized lawyer in family and custody cases from Al Dhaheri & Associates is a crucial step to ensure the protection of your rights and your children’s rights. Here are some reasons highlighting the importance of this consultation:

1. Understanding Complex Laws A family lawyer has extensive knowledge of the laws and regulations governing family and custody cases. They can explain these laws in a simplified manner, helping you understand your rights and obligations better.
2. Providing Customized Legal Advice The lawyer offers personalized legal advice for your specific situation, helping you make informed decisions based on the applicable laws and your particular circumstances.
3. Resolving Disputes Amicably The lawyer strives to resolve family disputes amicably through mediation, arbitration, and family agreements, reducing the need to resort to courts and enhancing cooperation between parties.
4. Providing Psychological and Emotional Support Family cases are often filled with tension and emotional turmoil. The lawyer can provide psychological and emotional support, helping you make more realistic and logical decisions.
5. Saving Time and Effort The lawyer can assist you in legal procedures quickly and efficiently, saving you significant time and effort. This includes submitting necessary documents and adhering to legal deadlines.
6. Protecting Children’s Rights The lawyer ensures the protection of children’s rights in cases of divorce or family disputes, including custody and alimony rights, ensuring that the child’s best interest is the top priority.