Legal Insights: Understanding Child Custody Laws and Rights

It is a legal term and it means a court decided about where and with which parent children will live. When a parent has “custody,” a parent has the authority to make decisions for his or her child. “Custody” can be divided into four kinds– Physical Custody, Legal Custody, Full Custody, and Joint Custody. These relate to aspects such as who the child will be living with and who will make decisions relating to how the child is brought up. It is seen as important for a child to spend as much time with both of their parents as possible, and this along with the need to keep the child safe and well is central to the decision that is made.

Physical Custody:

Physical custody refers to where children spend their time and which parent(s) provide care for them.

Legal Custody:

Legal custody, on the other hand, refers to which parent(s) have the legal authority to make important decisions on behalf of the child. For example, the parent(s) with legal custody may decide:

  • Where a child goes to school
  • What religious training does the child have
  • What medical treatment a child receives

Both physical and legal custody must be addressed when a couple separates or divorces.

Full Custody:

Full custody is where only one parent has both physical and legal custody of the child. It is only in exceptional circumstances that sole custody will be awarded, for instance: Where the other parent is held by the courts to be unfit to raise the child, is serving jail time, has a criminal record, history of abuse or neglect towards the child, or cannot take proper care of the child on account of being physically incapacitated or otherwise disabled.

Joint Custody:

Joint custody can be in the form of joint legal custody, joint physical custody, or even both joint legal and physical custody, wherein both parents are involved in aspects of the child’s life.

While such arrangements are fair to parents, joint custody is often only feasible and beneficial to the child when the parents are amicable.

Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide, and care for the child. The Personal Status Law defines custody as the process of upbringing and caring for the child in a manner that does not interfere with the rights of a child

  • Federal Law No. 3 of 2016 aims to protect children’s rights. This is also known as the ‘Wadeema’s Law.’
  • Article 156 of the Federal Law No. 28 of 2005 explains that in normal circumstances, the custody of the child should go to the mother until the sons turn 11 and the daughters turn 13 years of age.
  • Article 143 of the Personal Status Law describes the conditions required of a custodian.

Courts can consider many factors to determine the best interests of the child including:

  • The recommendations made by a mental health professional after a custody evaluation.
  • The preference of the child if they are old enough to have an opinion.
  • Who has been the child’s primary caregiver (if either parent has)
  • The ability of each parent to provide a stable, loving home.
  • Whether the child has any special needs
  • The emotional ties the child has with parents, siblings, and other household members.
  • The parent’s ability to provide connections with support networks, including extended family members.
  • The mental and physical needs of the child
  • The presence of domestic violence in the home

The goal is to look at the big picture and see which custody arrangement would best ensure the child’s stability and security moving forward. And, in most cases, this means keeping both parents in the child’s life.

Joint Custody is not offered to the parents in the UAE. Joint custody is offered to parents in rare cases as it is noted in very few cases there is a mutual agreement between parents to share the custody in the UAE. If the parents are willing and decide to share custody with a certain arrangement, the UAE Courts can grant such custody to the parents. The decision for custody in the UAE is governed by the Sharia law, which remains silent about joint custody. Since Sharia Law does not explicitly mention joint custody of the child, granting it does not contradict the law. This concept, although it will be applied to only rare cases and cases that demand the Court to grant such an arrangement.

The custodian of the child has the right to claim a custody fee from the children’s father in consideration of the performance of her services as a custodian of the children. Additionally, a father is required to financially support the boy until he finishes his education and the girl until she is married under Article 78. Temporary child support may also be claimed till the case is decided as per Article 68 of the UAE Personal Status Law. The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right, or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.

Sharia highlights the importance of children and the necessity to look after them and their welfare so that they can reach their full potential in life.  The Law applies to all children up to the age of 18. Pursuant to Article 39, the child’s physical and psychological interests are the only criteria that matter when deciding a child custody case.

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Dr. Manju Sharma

Musaab Ali Alnaqbi Advocates & Legal Consultants

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