Awatif Mohammad Shoqi Advocates & Legal Consultancy | View firm profile
Custody and guardianship are perhaps two of the most discussed concepts in the UAE family law. The present laws governing family matters have defined the scope of both to a certain extent, and parents are awarded their rights over the children accordingly.
With the enforcement of the new federal law on Civil Personal Status, there came to be a distinction as to what amounts to custody and guardianship for the Muslims and the non-Muslims living in the UAE. While there is no mentionable difference between the two under the new Civil Personal Status Law for non-Muslims, the Federal Personal Status Law of 2005, which has been structured as per the Islamic principles of Sharia and applies to the Muslims, has separated the two concepts.
How are custody and guardianship defined under the two laws?
According to Articles 146 and 156 of the Personal Status Law, custody of the children goes to the mother upon divorce, until the boy reaches the age of 11, and the girl reaches the age of 13. Guardianship means providing for the child’s needs, such as education, supervision, protection and proper raising, and goes to the father, under Article 181(1) of the Law. On the contrary, Article 10 of the Civil Personal Status Law states that custody is an equal right of both the parents, which will be shared equally regardless of the age of the child.
If you are a parent, worried that your child might be abducted by your spouse after divorce, or taken out of the country without your permission, you may consider applying for a travel ban on your child, regardless of which law you are subject to. The following article answers some of the most common queries regarding travel bans and restrictions on children from traveling.
Who has the right to keep the passport and other documents of the child?
Except when required for the purposes of traveling, the father has the right to keep the passport of the child, under Article 157(1) of the Personal Status Law of 2005. Other documents such as birth certificate, identity cards etc. may be kept by the mother while she is in custody of the child.
Under what conditions are parents allowed to travel with their child upon their divorce?
The mother cannot travel with the child without a written approval from the father, under Article 149 of the Personal Status Law. If she is still married or in her waiting period after divorce, she cannot leave the conjugal home with the child without the written permission of the father, as stated in Article 150(1).
Similarly, under Article 151(2), while the child is in the mother’s custody, the father cannot take him/her out of the country without written approval from the mother.
Can I relocate my children to another city while I hold their custody?
Once her waiting period ends, the mother may relocate the children to another city while they are in her custody, if it does not affect their education, or if it does not require unnecessary effort on the father’s end to stay informed of the children’s conditions. This is as per Article 150(2) of the Personal Status Law. However, if the father is facing difficulty in attending to his duties towards his children, the custody of the mother might be forfeited under Article 152(2) of the Law.
On the contrary, if the father himself moves to another city, this will not end the mother’s right to custody, as per Article 151(3).
What can I do if the father does not want to give me the passport of my child?
In cases of necessity, if the father refuses to hand over the passport to the mother, the judge may order that the mother will hold the passport from thereon, as stated in Article 157(2) of the Personal Status Law.
Are the provisions for travel ban on children the same for the new personal law?
Article 15 of the new Civil Personal Status Law states that the existing laws of the country will be applicable on matters for which there are no special provisions under the new law. Albeit custody and guardianship are not distinguished in the new law and are shared by the parents equally, the provisions of travel ban and other restrictions on children, upon separation, will be the same under the new law.
Are there any other rules for traveling with children after divorce?
The Dubai Courts have laid down a comprehensive list of travel controls for a child under custody, under Article 14 of Dubai Decision No. 3 of 2021 On the Adoption of the Manual of Procedures Organizing Personal Status Matters in Dubai Courts, applicable, however, only in the emirate of Dubai. Accordingly, the child is granted the right to travel, and if he/she is prevented from the same, it will be decided based on several factors, including but not limited to:
- There is evidence that the custodian or the guardian is preparing to travel with the child, or has traveled with the child previously without consent of the other parent
- There is evidence that such travel will affect the child negatively or expose him to danger
- The child as well as the person requesting the travel ban is holding a valid UAE residence permit
- The person requesting the travel ban is within the UAE
Article 14 also lays down the rules which need to be followed when the parents wish to travel with the child, and in light of those rules, the courts will determine whether the child is entitled to travel with the custodian or the guardian, as the case may be.