Dr. Haim Ginott, a child psychologist says “Children are like cement. Whatever falls on them makes an impression”. Children are delicate to handle and it is the responsibility of the parents to up bring their child by providing all the love and care which makes a child mentally and physically stable. Now a day’s family is losing its importance due to increase in divorce. After the divorce parents will fight for the custody of the child. This bitter battle between husband and wife make their child to obtain a wrong impression regarding family values.
In the UAE, custody laws are framed by looking at the best interest and welfare of the child. The applicable law in relation to the custody of the child is Federal Law No. 28 of 2005 (UAE Personal Status Law- Articles 142 to 158). This law gives us an exact idea regarding the child custody and how the custody and guardianship differ from each other. This law attempts to cover as many situations as possible to protect the best interest of the child.
A guardian takes care of child’s education, financial aspects, and important decision. In general, guardian takes care of the child’s affairs. A custodian who is having the physical custody of the child is concerned with the day to day life, upbringing of the child.
Legal requirements to be a fit custodian are:
- Sound Judgement (Mentally stable)
- Having attained the age of maturity (of the age 21)
- Fidelity (being loyal)
- Ability to raise the child and provide for his maintenance and care
- Safety form dangerous contagious diseases (infectious diseases)
- Not previously condemned for a crime against honor
With respect to the above requirements, there are certain conditions to be considered as per law. Those conditions are mentioned separately for a man and a woman. If the custodian is a woman then she should not remarry and be the same religion that of the fostered child. If the custodian is a father then he should have around him a suitable woman in his home to care for the child and be the same religion that of the fostered child.
Article 146 of the law explains who can be appointed as the custodian. Most often the mother is awarded the custody of the children. If the court finds that the mother is incompetent then the custody of the child is given to the father; if not to the child’s maternal grandmother; if not to the mother’s sister; if not to the father’s sister; if not to the sister daughters on the mother’s side etc.…
During the period of litigation, the custody of the child will be given to the mother, if the judge finds it better in the interest of the child. In the absence of the two parents or the custody is not accepted by those who are entitled to it, the judge shall choose the person among the relatives of the child or one of the institutions qualified for this purpose.
Related to Travel ban:
- The custodian is not entitled to travel with the child without obtaining a written consent from the guardian. If the guardian refuses to give the written consent the matter shall be submitted to the Judge.
- The mother, during the course of marriage or waiting period, is not allowed to travel with the child without the written approval of the father.
- After the waiting period, the mother can take the child to another city within the state if the same does not affect the child’s education and does not cost unusual efforts and expense to be informed about the child’s condition.
- If the custodian is other than the mother then she is not able to travel with the child without the written authorization of the guardian.
- The guardian or any other person is not entitled to travel with the child without the written authorization by the custodian.
Apart from travel ban, the guardian can keep the passport of the child with him and be handed over to the guardian in case of travel. The judge also can order the custodian to keep the passport of the child, if he finds that the guardian is refusing to deliver the passport to the custodian in the case of emergency. Woman fosterer may keep the originals, or true official copies of the birth certificate and any other evidential documents as well as his identity card, pertaining to the fostered child.
Cancellation of the Custodianship:
The court can cancel the custodianship on the following grounds:
- If the custodian is against the legal requirements and conditions prescribed in Federal Law No. 28 of 2005 (UAE Personal Status Law)
- If the custodian selects a domicile to another city which makes difficult to the guardian to attend his duties towards the child.
- If the person entitled to custodianship keep silence and do not claim his/her right for the period of six months.
- If the custodian lives with the person whose right of custodianship was terminated for the reason other than physical disability.
Custodianship can be reinstated (put back) to the one from whom it was forfeited whenever it has disappeared.
Related to Visitation:
- If the child is under the custody of one of the parent, the other is entitled to visit the child and be visited by the child and accompany him whenever decided by the judge providing the date, place, time and the person who is in charge to bring the child to the visiting place.
- If the parents of the child are passed away, then the child’s relatives who are of first degree (prohibited from marrying the fostered child) can visit the child as decided by the judge.
- If the child is under the custody other than the parents, then the judge will decide the persons who are entitled to visit the child among his/her close relatives.
Related to the custody of the child to woman:
The right to custody of the child to the woman will end upon his reaching the age of 11 (eleven) years, in the case of a male child and thirteen (13) years in the case of a female. The custody can be extended to the woman for a male until he reaches the age of maturity and for female up to her marriage. The judge who will keep the best interest of the child in mind and decide in the case with regards to the extension of the custody. Even the custody rights will continue with the woman if the child is of unsound mind or suffering of a disabling illness.