Ask the Law: Can my ex-husband file a fresh Sharia lawsuit, claiming custody of our children?

Custody battle

Question: I am a non-Muslim who has been divorced. One year ago, I got custody of my children — a daughter and two sons. Currently, my former husband has filed a lawsuit before the Sharia court to revoke the custody under Sharia Law. Does my former husband have the right to file a new Sharia lawsuit only after a year has passed since I obtained the custody lawsuit? Please advise.

Answer: Your husband has the right to file a lawsuit. The fosterer must satisfy the following conditions:

1) Sound judgement; 2) having attained the age of maturity; 3) fidelity; 4) ability to raise the fostered child and provide for his or her maintenance and care; 5) safety from dangerous contagious diseases; and 6) not previously condemned for a crime against honour.

Article 143 of the Personal Status Law states that in addition to the conditions mentioned in the above Article, the fosterer must, according to Article 144:

1) If a woman: a) Be not married, in a consummated marriage, to a man not related to the fostered child, unless the court decides otherwise in the interest of the child. b) Be of the same religion as the fostered child, with due compliance with Article (145) of this Law. 2) If a man: a) He must have around him a woman able to be a fosterer. b) Be related to the fostered girl with such close kinship prohibiting him to marry her. c) Be of the same religion as the fostered child.

The fosterer’s right to fosterage is forfeited in the following instances:

1) Derogation to one of the conditions stated in Articles (143) and (144).

2) In case the fosterer elects a domicile in another city thus making it difficult for the tutor to attend to his or her duties. 3) Should the person entitled to fosterage keep silent and do not claim this right for a period of six months without excuse. 4) Should the new fosterer live with the one whose fosterage has been forfeited for a reason other than physical disability?

Moreover, Article 156 states: 1. The right of women to fosterage of a child shall end upon the child reaching the age of 11 years, if male, and 13 years, if female, unless the court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest. 2. Unless the interest of the fostered child otherwise requires, the women fosterage shall continue in case the child is of unsound mind or suffering of a disabling illness.

Finally, if one of the above-mentioned conditions is no longer fulfilled by the fosterer mother, then the father may request to revoke the custody of the children. The court decides on such matters, taking into consideration the benefit of the children.