Awatif Mohammad Shoqi Advocates & Legal Consultancy | View firm profile
The personal status matters in the UAE are regulated by the Federal Law No. 28 of 2005 (UAE Personal Status Law), as amended and Federal Law No. 5 of 1985 on Civil Transactions Law, as amended. Additionally, Emirates of Abu Dhabi has issued a new law called the Abu Dhabi Law No. 14 of 2021, which mainly applies to non-Muslims based in Abu Dhabi. The UAE Personal Status Law continues to apply to Muslims in Abu Dhabi.
Custodian and Guardian
Under the UAE Personal Status Law, a custodian and a guardian are two different concepts. A custodian is an individual who takes care of the child on a day-to-day basis and has physical custody of the child. For an individual to be a custodian, they must have sound judgement, attained the age of maturity, fidelity, ability to raise the fostered child and provide for his maintenance and care, safe from dangerous contagious diseases and not previously condemned for a crime against honor (Article 143).
According to Article 146 of the UAE Personal Status Law, the mother has the first right to be a custodian, followed by the father. The right of the mother to be a custodian will end upon the daughter reaching 13 years and the son turning 11, unless the mother is unfit to take care of the children. The father will have the right to claim custody only after the children cross the age thresholds.
On the other hand, a guardian is an individual who is responsible for providing financial support, taking care of education, travel and general upbringing of the children. Under Article 181 of the UAE Personal Status Law, the right of guardianship is first to the father, and then to the grandfather.
Rights and Obligations of a Guardian
Some rights and obligations of the guardian have been explained below. The guardian of the child has the right to keep the passport of the child with himself, except during the travel of the child, during which the passport should be handed over to the mother (Article 157).
The custodian also may not travel with the child outside the country except with the written approval of the guardian and if the guardian refuses to give his consent, the matter can be submitted to the judge under Article 149 of the UAE Personal Status Law.
As mentioned above, the guardian is responsible for the child’s education, general upbringing and providing related financial support.
The guardian will also have visitation rights towards the child. Under Article 107 of the UAE Personal Status Law, the judge has the power to issue an order which will fix the maintenance of the wife and children, determine who the custodian will be and set out the right of visiting the child by the other person.
Under Decision No. 3 of 2021 On the Adoption of the Manual of Procedures Organising Personal Status Matters in Dubai Courts (Dubai Decision), which applies only to Dubai, the judge determining the visitation rights, shall, in his order related to visitation, specify the visitation days, time, place, description, and right holder, whether during school days, holidays, or vacations, and whether or not it includes off-site visits.
The judge may rule or order the overnight stay of the child under custody with the person entitled to visitation, unless the interest requires otherwise.
Conclusion
Spouses getting divorced is a tough situation and where children are involved, it becomes more complicated. It is advisable to obtain legal advice from family law experts who will guide you on the best next steps, providing optimal results for you and your family.