Can a Woman Regain Custody of Children After Forfeiture of Custody Rights?

In the UAE, custody of children is governed by the UAE family law, consisting of Federal Decree Law No. 41 of 2024 on the issuance of the Personal Status Law which governs Muslims in the UAE ("Federal Personal Status Law"), Federal Decree Law No. 41 of 2022 on the Civil Personal Status, governing non-Muslims in the UAE, except in the emirate of Abu Dhabi ("Federal Civil Personal Status") and Abu Dhabi Law No. 14 of 2021 concerning the Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi ("Abu Dhabi Civil Personal Status Law").

Custody of children under Muslim law

The Federal Personal Status Law is based on sharia principles. Therefore, after a divorce, as per Article 112 of the law, the father of the children obtains guardianship rights over the children, while the mother of the children is granted custody rights. Custody refers to the day-to-day care and responsibility of the children, including managing their food, clothing, health and wellbeing. Consequently, the custodian obtains physical custody of the children. On the other hand, guardianship refers to the overall supervision of the affairs of the children. In addition to guardianship, the father also obtains the financial responsibility over the children.

Disqualification of custody rights under Muslim Law

A mother, or any other person, may be disqualified from obtaining custody over the children in the following cases:

• if she suffers from a contagious disease that poses a risk to her children
• if she does not have the ability to raise children in a good manner, and to oversee their education
• in case of a woman, if she is married to a man who is not related to her children, unless the court decides that living with the mother is in the best interests of the children
• if she is convicted of a crime involving turpitude
• if she is addicted to intoxicants or other psychotropic substances
• if she does not share the same religion of the child, unless the court decides that living with the mother is in the best interests of the children

In certain cases, a mother may obtain custody over her children, but this right may be forfeited. This may occur due to the following reasons:

• If any of the reason required to obtain custody are not met
• If the custodian moves to a place, with an intention to live there, against the best interests of the children
• If she starts to live with a person whose right to custody has been revoked for reasons other than health
• If the custodian commits reprehensible behavior that affects the child.

Can a mother regain custody of children after forfeiture of her right?

Article 115(2) of Federal Personal Status Law clearly states that a person can apply to the court to regain their custody right after forfeiture, if the reason for forfeiture has been removed. Moreover, UAE courts prioritizes the best interests of the children while issuing any decisions governing children’s rights.

Can a Muslim mother regain custody rights if the rights were rescinded in a divorce settlement agreement?

Custody rights may change due to changing circumstances. The father’s right to custody may also be challenged for disqualification due to the reasons provided under articles 113 and 114. Therefore, a mother can claim custody rights over her children based on a change in circumstances.

Child custody under non-Muslim Law

Federal Civil personal Status Law and the Abu Dhabi Civil personal Status Law allows for joint custody over children, after the divorce of their parents.

The Abu Dhabi Civil Personal Status Law under Article 9(1) states that it is the right of the children to be raised and seen by both parents rather than by one of them exclusively, in order to maintain the mental health of the concerned child and to limit the repercussions of Divorce. Consequently, as per Article 16(4), the Abu Dhabi law allows joint custody over the children until the children attain the age of 16. The Federal Civil Personal Status Law, under Article 4(4) allows joint custody until the age of 18.

Disqualification of custody under the non-Muslim Law

In accordance with Article 33 of Abu Dhabi Decision No. 8/2022 on the Approval of the Regulation of Civil Marriage and Divorce Procedures in the Emirate of Abu Dhabi, an application can be made to the court to disqualify a parent from joint custody in the following cases:

• if the child is at a risk of exposure of domestic violence or ill-treatment.
• If a child is subject to inadequate living conditions provided by the joint custodian
• if a child has specific health needs that the joint custodian is unable to provide.
• in cases of behavioral, psychological or mental problems of the parent that may harm the Child or expose him to danger or neglect.
• if the parent fails to devote time to care for the Child
• if the child does not wish to be under the custody of a parent provided that s/he has reached 12 years of age.
• in cases of abuse of drugs, alcohol or any psychotropic substances.
• if the parent suffers from health issues that stops them from carrying out their duties with respect to child care.
• if the parent remarries
• Any other reasons determined by the Court.

Similar reasons apply for disqualification of custody rights under the Federal Civil Personal Status Law as per Article 18 of Cabinet Decision No. 122/2023 on the Implementing Regulation of Federal Decree-Law No. 41/2022. However, under this law, if a child does not wish to continue living with a parent, an application to that effect may be made if the child has attained 18 years of age.

Conclusion

Although the family law in the UAE is made up of three different regulations, the children’s welfare and their best interests are always given the most importance while making decisions regarding child custody and child affairs.

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Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.