Ask the law: Divorcee mum seeks clarity on child custody
What Personal Status Law says about forfeiture of child custody due to marriage
Question:
A questioner asks: I am a Muslim woman. A year ago, the court ruled for divorce and custody of my 3-year-old son and 4-year-old daughter. My question is, if I am currently married, does my ex-husband have the right to file a legal lawsuit to forfeit my custody? According to the Personal Status Law, is custody actually forfeited due to marriage? What are the conditions for forfeiting custody according to the Personal Status Law? Please advise.
Answer:
To answer such question, I would advise the questioner that:
Your ex-husband has the right to file a lawsuit to forfeit your right of custody because according to the Personal Status Law, custody can be forfeited in case of the mother’s marriage, unless the court decides otherwise in the interest of the child. Article 144 of the Personal Status Law states that: “In addition to the conditions mentioned in the above Article, the fosterer must: If a woman: a- 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.”
2- The fosterer’s right to fosterage is forfeited according to Article 152 of the same law are in the following instances:
- Derogation to one of the conditions stated in Articles 143 and 144.
- In case the fosterer elects a domicile in another city thus making it difficult for the tutor to attend to his duties.
- Should the person entitled to fosterage keep silent and do not claim this right for a period of six months without excuse.
- Should the new fosterer live with the one whose fosterage has been forfeited for a reason other than physical disability.
From their part, Articles 143 & 144 specify the conditions the fosterer must satisfy for custody: Sound judgment; having attained the age of maturity; fidelity; ability to raise the fostered child and provide for his maintenance and care; safety from dangerous contagious diseases; and not previously condemned for a crime against honour. In addition to these conditions mentioned, the fosterer must:
i- If a woman: a - 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.
ii - 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.