February 24, 2016
DUBAI: The mother of a 14-year-old girl is worried sick. Since her daughter is 13-plus, she does not have automatic custody or any guardianship rights over her in the UAE. But the father, who has these rights, has an alcohol problem and poses a serious risk to the girl’s safety.
The daughter has even expressed fears about his violent outbursts when she is around. The mother, who sought legal advice to find a way out, has been advised to make an application to the court so she can take care of her daughter.
In another case, a non-Muslim mother has threatened her husband that she will take their only daughter out of the UAE. Denying him his right of guardianship over the girl, she is set to leave the country without his consent. The father, who holds the child’s passport, also availed the services of a legal consultant to make an urgent application to the court to place a travel ban on his daughter so she cannot exit the country with her mother.
In a shocking trend, instances where children are caught in ugly battles for custody and guardianship are becoming increasingly common in the UAE, claim legal experts. But many of them, they add, are avoidable as they result from lack of awareness about the laws of the land and the failure to take timely legal recourse.
According to Tina Thapar of Al Midfa & Associates Advocates and Legal Consultants, which deals with a number of such cases in the Dubai Courts, issues of child custody and guardianship come to the fore when the parents seek divorce as there is no concept of separation in the UAE.
“Custody and guardianship of a child are defined by Federal Law No (28) of 2005 concerning Personal Status. The biological mother of the child is the custodian and the father the guardian (unless there is a court order appointing someone else as custodian or guardian). Custody means day-to-day upkeep and taking care of the child, which is usually granted to the mother without interfering with the right of guardianship awarded to the father at all times since he is responsible for providing for the child financially, morally and physically.”
Nita Maru, managing partner and solicitor, TWS Legal Consultants, said: “The courts here will always act in the best interests of a child. Custody and guardianship are two separate issues which must be addressed individually as parents do not share equal responsibilities for a child in the UAE, as compared to, say, England.”
She said she was recently approached by a woman who was acting as the mother of a child who was not biologically hers, but her husband’s from a previous marriage. “Although she wanted full rights of custody and guardianship over the child, she was advised that in a divorce in Dubai, she would not have such rights since she was not the biological mother of the child. A woman in this situation actually carries no rights to the child, even before divorce, whilst the couple is married.”
Claiming custody can be a tricky matter.
Thapar said Article 156 of the Personal Status Law provides that women’s custody of the children ends when a boy reaches the age of 11 and when a girl turns 13. The father being the guardian can claim the custody of the male child when he reaches the age of 11 and the female child when she reaches the age of 13.
“The mother also has the right to claim the extension of the custody period until the boy finishes his education and the girl gets married and to ask for extension of the custody, the mother has to prove that she has been good with the children i.e. through their school performance reports, good medical health history etc. Nonetheless the father can claim the custody of the male child if he feels the boy is being too soft in nature by staying with the mother and he would want him to grow up to be more courageous and responsible. In both circumstances, it will be the judge who will keep the best interests of the child in mind and decide the case.”
Another common misconception among conflicting couples is that they can keep the children away from the spouse by fleeing with them out of the country.
“It is important to note that a custodian cannot travel without the guardian’s approval and vice-versa,” said Nida Chaudhry, solicitor at TWS Legal Consultants. “There are situations when a divorce is pending, and either parent suddenly decides to flee Dubai with the child without the consent of the other parent, without realising that this amounts to child abduction.”
She said: “This is a very sensitive and serious situation. Even the home country where the parent has fled to is likely to return abducted children to their country of residence. In addition, the parent abducting the child can face serious consequences for such action.”
Maru said if either parent has concerns that their permission will not be sought for travel, they can obtain a travel ban preventing the child from leaving the airport. If there is a dispute the matter can be referred to a judge. “In such situations it is prudent to speak to a family lawyer about the arrangements and safeguards that can be put in place if it is felt there is a potential risk of child abduction.”
There are any number of cases involving travel bans.
Thapar said a Muslim mum with a foreign passport recently approached her country’s embassy to seek a passport for her children based on a court judgment that she was their sole custodian. The guardian father, also a Muslim, living in another country, insisted that the mother come to his country with the children and refused to give his consent for a change of passport. The embassy requested the mother to produce an NOC from the father or get a court order to go ahead with the passport change.
“Since there was no convincing the father, the mother had to procure a court order and hand over the judgments issued in her favour to the foreign embassy which sought legal opinion from us before they could issue the passport. We informed them that we have noticed from the said judgments that the husband does not reside in the UAE and to that extent, there is a Court of Cassation ruling which we referred to, which orders that in the event the guardian is abroad, his consent is not required for the custodian to take the children abroad,” said Thapar.
Maru cited another instance involving a divorced couple with a 16-year-old boy and a 15-year-old girl. “The mother had received information that the father was planning to leave Dubai and return to Canada. She was also informed by the children that the father was abusive and violent. She decided to obtain a travel ban in order to prevent his move with the children. The court granted the travel ban since the mother provided strong documentary proof that the children would be unsafe with their father and a move abroad would not be in their best interests.”
At the end of the day, Thapar said parents mulling divorce have a responsibility to separate gracefully for the sake of their children. “If as couples you cannot live together, you have the right to go separate ways. But remember when you have children, especially minors, they do not understand why this is happening and are torn apart between the parents. Take care and deal with such difficult transitions by seeking professional help from elders, psychologists, family counsellors and family lawyers.”
What the law says
As set out in Article 143 and 144 of the Federal Law 28 of 2005 (Personal Status Law, a custodian must be:
2. Mature enough and have attained the age of puberty
4. Able to bring up and take care of a child
5. Free from infectious disease
6. Not have been sentenced for a crime of ‘honour’
If the custodian is the mother she must:
1. Not re marry unless the court decides it’s in the best interests of the child and
2. Share the same religion as the child
If the custodian is the father, he must:
1. Have a suitable woman living within his home to care for the child (such as a female relative)
2. Share the same religion as the child.
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