Question: Four months ago, I got a divorce and my ex-wife got custody of our four-year-old son and eight-year-old daughter. Now, I’ve learned that she leaves the children alone at home every night and comes back the next day. My question is, am I legally entitled, according to Sharia [Islamic law], to file a lawsuit and get custody, as well as drop the monthly instalment imposed on me by the Sharia court? Do I currently have the right to keep my children’s passports? Please advise.
Answer: Leaving the kids at night is not, on its own, a cause to drop the custody. But if you can prove that the mother is always sleeping outside, and the kids are facing danger because of this and you provide documents of the harm this matter caused, then it might be taken into consideration by the court after estimating the causes, reasons you submit and the interest of the children. The interest of the children is a priority to the court and comes over the interests of the mother and father.
As a general rule, Article 152 of the personal status law specifies the instances the fosterer’s right to fosterage is forfeited as follows:
1. Derogation to one of the conditions stated in Articles 143 and 144 which are (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; not previously condemned for a crime against honour and 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.)
2. In case the fosterer elects a domicile in another city thus making it difficult for the tutor to attend to his 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, the right of women to fosterage of a child shall end upon his reaching the age of eleven years, if a male, and thirteen years, if a 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.
According to Article 156, you have the right to keep the kid’s passports with you as per Article (157) of the same law which states that “without prejudice to the provisions of Article (149) of this Law, the tutor may keep with him the passport of the fostered child, except in case of travel, where he should hand it over to the woman fosterer. The judge may order to maintain the passport in the hands of the fosterer should he notice an obstinateness from the tutor’s part to refuse delivering it to the fosterer in case of necessity".