A woman asks: I am a non-Muslim woman married to a non-Muslim man. I have a 3-year-old son and a 5-year-old girl. Currently, I am at odds with my husband and I want to divorce him, according to the Personal Status Law for non-Muslims.
My question is: If the divorce is because or initiated by me, do I have the right to claim custody? And if the court decides to give me custody of the children, do I legally have the right to leave the UAE permanently and return to my country? Until what age am I legally entitled to retain custody of my children? Please advise.
I would advise the the following:
The new law allows mutual custody between the father and the mother, whatever the reasons of divorce are, until the child reaches the age of 18 at which time the child will be given the right to choose to continue with either the father or the mother.
During the mutual custody, the court, by application from one of the parents, can grant the sole custody to the applicant, if justifiable reason is proven to the court that the other parent is not eligible.
Travelling outside the country should be also a mutual decision between the father and mother; and, in case there is a dispute regarding parental rights, either parent may approach the court to request the court’s intervention to decide on the disputed matter.
Article 10 of the new Law states that:
(1) Custody of children is a right granted to both the father and the mother equally after the divorce, as well as it is a right of the children to have both parents raise them, to minimize the psychological effect of divorce on the children;
(2) The primary rule in terms of custody is that the father and the mother shall have joint custody over the children after the divorce, unless the two parties submit a request to the court to grant custody to whoever is capable of achieving the best interests of the child, or one of them requests a written waiver before the court of his right to custody, or submits a request to the court to exclude the other party from joint custody for any reason accepted by the court — such as incapacity, danger of such custody, or the party failing to perform his duties;
(3) In the event of a disagreement between the father and the mother regarding any matter of joint custody, either of them has the right to submit an application to the court to object, or to request the intervention of the court to decide on the matter in dispute;
(4) The court will have the discretionary power to decide what it deems appropriate for the interest of the fostered child, based on the request of either parent after the divorce.