Question: I am a Muslim and my wife is a Muslim. Four (4) months ago, my wife obtained a divorce judgment and custody of my children, two boys and a girl, and an amount of Dh7,000 for custody.
Two months ago, I lost my job and failed to find a new job, so I canceled my residency, and currently I am preparing to leave the UAE. My question in this case is: according to UAE law, do I have the right to file a legal case to drop custody and take my children to my country, since I am unable to support my children? What is the position of the personal status law for such a case? Please advise.
I would advise the following:
You have the right to file a case to forfeit the fosterer’s right to fosterage in order to settle in another country but the court will take the decision as per the circumstances of each case and the burden to prove that your transfer is for the purpose of stability and settling falls on you.
As per Articles 151 of the personal status law (The fosterage of the repudiated mother may not be forfeited just because the father moved to a city other than that in which the fosterer resides, unless the move is for the purpose of settling, is not prejudicial to the mother and the distance between the two cities does not allow the mother to see the fostered child and return the same day by the usual transportation means).
It is established in the Maliki School that the place of custody of the child in the event of marriage is the place where his parents reside. If the father wanted to travel with the child while he was in his mother’s custody with the intention of moving and settling in another country, then this would result in forfeiture of the mother’s custody unless she moved with her foster children to that country to which the father moved.
The burden of proving the father’s move to another country with the intention of settling in it falls on the shoulders of the father assumed that he is the plaintiff.
This is decided in Cassation No. 94/2006, Personal Status Appeal that (it is stipulated in Article 3/151 of the Personal Status Law that the father’s move to a country other than the identifiable mother’s domicile does not forfeit the mother’s custody, unless the move was for the purpose of stability, and was not harmful to the mother, and the distance between the two countries prevented seeing the fostered child and returning on the same day by regular means of transport).