Question: A questioner asks: Two years ago, I obtained a divorce ruling and custody of my daughter, who is 3 years old, and my son, who recently turned 13 years old. Currently, my ex-spouse has filed a lawsuit before the Sharia Court to drop my custody from my son because, according to the law, he exceeded the age of custody.
My questions: 1. Do I have the legal right to retain custody of my child? 2. Do I have the legal right to demand an increase of alimony, given that my ex-spouse’s salary has increased? Should I file a new lawsuit for these requests? Please advice.
Answer: To answer such question, I would advise the questioner that:
1 - As per Article 156 of the personal status law, 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. You have the right to request the custody of your son, but it depends on the court to accept or not.
The court takes many factors into consideration, this includes not separating your children from each other for their interest to be raised together, which might play a role in preserving your custody for both children.
2 - You have the right to request to increase the alimony because more than one year had passed from that judgment of the alimony. This complies with Article 64 of the same law which states that (Alimony may be increased or reduced according to the change of circumstances. Save in exceptional circumstances the action in increment or reduction of the alimony may not be heard prior to the lapse of one year as of the date of deciding it. The increase or decrease of alimony is computed from the date of claim in court.) The burden to prove that the salary of your ex-spouse had been increased falls on you.
3 - You can file a counterclaim in the same lawsuit your ex-spouse had filed if this lawsuit is still in the First Instance Court stage and you may request what you want taking into consideration that the counterclaim can be filed in the First Instance Court’s stage only not in the appeal stage.
