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The Custody

ABC Law Firm > Uncategorized  > The Custody

The Custody

In accordance with Emirati personal status law Fostering is to safekeeping the child, educate and ward him in a manner that does not contradict the tutor’s right of tutelage over the person of the child.

the fosterer must satisfy the following conditions as defined in the UAE`s law:

1) sound judgment;

2) having attained the age of maturity;

3) fidelity;

4) ability to raise the fostered child and provide for his maintenance and care;

5) safety from dangerous contagious diseases; and

6) not previously condemned for a crime against honor.

In addition to the conditions mentioned in the above Article, the law stipulates additional conditions the fosterer must have, those conditions are:

If the fosterer is a woman:

  1. Be 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.  Be of the same religion as the fostered child, with due compliance with Article (145) of this Law.
  3.  He must have around him a woman able to be a fosterer.
  4. Be related to the fostered girl with such close kinship prohibiting him to marry her.
  5. Be of the same religion as the fostered child.

And now we’ll know who has the rights of custody in the Emirati law?

  1. Fosterage of the child is a right to the mother, then to the females, within the prohibited degrees of kinship, giving preference to those from the mother’s side over these from the father’s side taking into consideration the closest degree from both sides, with the exception of the father. The following order shall be observed:
  • The mother.
  • The father.
  • The grandmother, from the mother’s side, and upwards
  • The grandmother, from the father’s side and upwards.
  • The sisters, giving preference to the full sister, then to the stepsister from the mother’s side, then the stepsister from the father’s side……and The judge shall take into account in deciding the interest of the infant:
    1. Where no fosterer is found among the above women, or if none is qualified, fosterage shall pass to the male agnates, in the same order followed in inheritance, giving preference to the paternal grandfather and his ascendants.
    2. Should fosterage be refused by those entitled, male or female, the right passes to the next entitled who shall be notified thereof by the judge and if he refuses or keeps silent for fifteen days, the right passes to the next in rank. The judge shall choose the best guardian for the infant if the right to custody is multiple and the right- holder are in one degree.
    3. Unless the judge deems in the interest of the fostered child, the mother, in case of litigation, is entitled to fosterage.
    4. In case of difference between the spouses and where the mother leaves the conjugal domicile, even if the bond of marriage has not been dissolved, the mother or the father may apply to have the children join him/her and the judge shall decide in accordance with the children’s best interest.

    We will discuss the following cases:

    For example, what if both parents were absent, and none of the entitled persons accepted the custody of the child?

    In this case, the judge may choose the adequate person from the child’s relatives or others or one of the qualified institutions for this purpose.

    Another raised question is: does the mother get a fosterer’s alimony?

    The female fosterer is not entitled to alimony if she is the wife of the fostered child’s father or is in her waiting period during which she is entitled to alimony from him.

    One of the frequently asked questions is: can the female fosterer travel with the fostered child without the consent of the child’s guardian?

    The fosterer may not travel with the fostered child outside the state except with the written approval of his guardian. In the case of the guardian refusal, the matter is submitted to the judge.

    Whereas, if the female fosterer intends to move the child within the state, here we can distinguish two cases:

    during the state of wedlock or during her waiting period a revocable divorce, the mother may not travel with her child or move him from the conjugal domicile without the written approval of his father. Whereas after an irrevocable divorce (meaning after the divorce is final) The mother may move with the child to another city within the State in case this move does not affect his education, or adversely affect the father like costing him unusual effort and expense to ask after his fostered child.

    In the event that the fosterer is not the mother of the child, she may not travel with the child without written consent from his guardian.

    The Guardian, whether he is the father or another person, may not travel with the child during custody without the written consent of the fosterer.

    The custody of the divorced 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, does not adversely affect the mother, and the distance between the two cities does not prevent the mother from visiting the fostered child and return the same day by the usual transportation means.

    Now, let’s clarify the cases in which the fosterer’s custody is forfeited:

    The fosterer’s right of custody is forfeited in the following instances:

     

    1) Breaching of one of the conditions stated in Articles (143) and (144).

    2) In case the fosterer resides in another city where it is difficult for the guardian to undertake his duties.

    3) In case the person entitled to custody does not claim this right for a period of six months without excuse.

    4) If the new fosterer lives with the one whose custody has been forfeited for a reason other than physical disability.

    can the fosterer restore the custody after being forfeited?

    In this case, the law stipulates that the custody can be restored to the one from whom it was forfeited if the cause has disappeared.

    Right to visit the infant:

    When the fostered child is under the custody of one of his parents, the other is entitled to visit and be visited by the child and accompany him as decided by the judge provided the place and time and the person in charge of bringing the fostered are fixed.

    In the event that one of the parents of the fostered child has passed away or is absent, the fostered child’s relatives, to a degree prohibiting marriage, have the right to visit him as decided by the judge.

    in case the fostered child is with other than his parents, the judge shall designate the person entitled to visit him from among his relatives to a degree of prohibiting marriage.

    The judgment is executed forcibly if the person with whom the fostered child lives refuse to execute it.

    The Minister of Justice, Islamic affairs and Wakfs shall issue a regulation determining the procedures to see, deliver and visit the fostered child provided these do not take place in police stations or prisons.

    When does the custody of the mother end?

    The right of women to custody of a child ends upon reaching the child, if a male, the age of eleven years, and thirteen years, if a female, unless the court deems the  necessity of extending this age to the interest of the fostered child  to the age of maturity for the male, and upon the marriage of the female.

    The women custody shall continue in case the child is of unsound mind or suffering of a disabling illness unless the interest of the fostered child otherwise requires.

    But can the mother maintain the fostered child passport?

    The Guardian has the right to keep the fostered child’s passport unless in the case of traveling when he should hand it over to the fosterer.

    The judge may order to maintain the passport in the hands of the fosterer if he notices an obstinacy from the guardian in delivering it to the fosterer in case of necessity.

    The woman fosterer has the right to keep the fosterer child’s original birth certificate and other identity documents or certified copies, and she may also keep the fosterer’s identity card.

    Now, we will talk about the way of executing the decisions concerning the delivery of the child, and it is as follows:

    Court decisions regarding the joining, protecting and delivering of the child to a keeper and separation between spouses and other matters related to personal status are enforced coercively even through the use of force and entering homes forcibly. The official in charge of execution shall follow the instructions given by the enforcement judge in the court of the place of enforcement. The court decision shall be re-enforced whenever required.

    should the court decision rendered against the wife to follow her husband be enforced coercively?

    In this case, the judgment rendered against the wife to follow her husband should not be enforced coercively.

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