Family Law - Custodial and Parental Responsibility

Hassan Elhais
 


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Briefly explain the legal position in relation to custody/ parental responsibility following the breakdown of a relationship or marriage.

Parents do not share equal parental responsibility for the child. Following a divorce, the mother will become the ‘custodian’ of young children, and the father the ‘guardian’. The custodian is obligated to care for the child, meet the child’s day to day needs and have the child live within their home.

As set out in Article 143 and 144 of the Personal Status Law, a custodian must:

1. Be rational.
2. Be mature enough and have attained the age of puberty.
3. Be honest.
4. Be able to bring up and take care of a child.
5. Be free from infectious disease.
6. Not have been sentenced to a crime of ‘honour’.7. If the custodian is the mother, she must:

a) Not re-marry unless the court decides it is in the best interests of the child.
b) Be the same religion as the child.

8) If the custodian is the father, he must:
a) Have a suitable woman living within his home to care for the child (such as a female relative).
b) Be the same religion as the child.

As set out at Article 146 Personal Status Law, the mother will have custody of young children. Unless the court orders otherwise, custody will move from the mother to the father once the children reach the age of approximately ten and a half for a boy, and twelve and a half for a girl. The court is able to move custody to the father and other maternal/ paternal family members if it is determined that the mother does not meet the criteria for a custodian as set out above. Nevertheless, when determining such matters the court will consider the welfare of the child as the primary concern, and make a decision based on the child’s best interests in each particular case.

Guardianship involves supervising, protecting, educating and preparing a child for life, and agreeing to the child being married when necessary. It will often mean making the decisions regarding a child’s schooling or medical treatment. It also involves guiding the child in terms of morals, education, and religion.

Guardianship will be removed if the guardian committed rape, disgracing conduct or prostitution or led the child in such ways, or if the guardian was sentenced to punishment for a felony crime or misdemeanor that affected the ‘soul’ of the child. Guardianship can be permanently or temporarily removed if the guardian was sentenced to imprisonment, or if he subjected the child to excessive danger. When investigating such cases, the court may temporarily decide to hand over guardianship of a child to a specialized social organization.

Briefly explain the legal position in relation to access/ contact/ visitation following the breakdown of a relationship or marriage.

Contact with a child post divorce is called ‘visitation’. The guardian is entitled to visit the child regularly. The custodian may not move the child permanently to another country if it would prevent the guardian from exercising contact with the child. A guardian (usually the father) may make an application to the court for an order to allow him to exercise his right to visit the child. Usually, such contact would take place for an afternoon each weekend, and for an additional time during school holidays. Staying contact would only be permitted where the child is over the age of 2.

Author: Mr. Hassan Elhais, along with his team of legal consultants and prominent local lawyers across the UAE, has made a name for himself as a renowned specialist in the fields of civil law, construction law, banking law, criminal law, family law, inheritance law and arbitration.

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