Custody in the UAE is rather sensitive and multi-faceted, influenced by the type of family structure, religion, where the marriage was held, residency issues, and many more depending on the couple’s relationship. There exist different legal frameworks for custody between Muslim and non-Muslim families; some important nuances include when the custody is transferred, the responsibility tied to custody and guardianship, and how courts will make a decision.

Custody Laws for Muslims

In the case of Muslim families, all issues regarding custody are decided under the UAE Personal Status Law, Federal Law No. 28 of 2005, as amended. It prescribes the conditions that must be satisfied by custodians and the circumstances under which custody may be transferred from one parent to another.

Key Provisions of the Personal Status Law

1. Religious Alignment
   • Article 144: The custodian must be of the same religion as the child.
   • Article 145: A mother who has a different religion from her child loses custody unless the primary court decides that it is in the interest of the child to stay with the mother up to a certain age.
2. Conditions of Custodianship
   • The custodian needs to possess mature judgment, be of full age, and able to bring up the child.
   • He should not have been convicted of one of the offenses against honour and should not suffer from contagious diseases.
   • If female, the custodian should not be married to a person unrelated to the child unless the court decides otherwise.

Transfer of Custody

Whereas by operation of law, custody often passes from the mother to the father at various stages, depending upon whether the child is a boy or girl, such transfer is not automatic. The law presumes that the father has accepted responsibility for custody and the accompanying duties thereof in the areas of financial support and caregiving.

In practice, however, the following may be the custody arrangement:

• Mutual Agreement: Parents can mutually agree upon a mother continuing to have custody of the child beyond the age at which the law would normally transfer that right. This is simply because a father may not want, for practical or emotional reasons, to be given custody.
• Judicial Discretion: The Courts often apply the principle of the best interest of the child and depart from rigid interpretations of Shariah. For example, in cases where the father is incapable of taking care of the child—either financially or otherwise—the court would grant custody to the mother even when the law is explicit.

Custody and Guardianship

With custody come heavy responsibilities. If the father is unable to provide sufficient financial or emotional support to the children, the mother can appeal to the court to continue with both custody and even guardianship. The court, in this regard, assesses if the mother is in a better situation or position to handle the needs of the children and grants her more powers over the welfare of the children.

Custody Laws for Non-Muslims

Non-Muslim families in the UAE have broader choices of legal frameworks with, by comparison, more flexibility than the Shariah-based system.

Applicable Laws for Non-Muslims

1. UAE Federal Decree-Law No. 41 of 2022
   • This law applies to non-Muslims throughout all Emirates except Abu Dhabi.
2. Abu Dhabi Law No. 14 of 2021
   • This is the personal status law applicable to non-Muslim foreigners living in Abu Dhabi.
3. Foreign Law
   • This allows non-Muslim couples to apply the laws of the country where they got married, according to the UAE Personal Status Law.
4. Pre-Nuptial Agreements
   • Pre-nuptial agreements regarding custody terms on which the couple may have depended. Though the pre-nuptial agreements are not binding in matters of custody, the court can consider them if they are for the best interest of the child.

Requirements for Fosterage

Article 143 of the Personal Status Law provides the requirements that a fosterer must satisfy:

• Sound judgment and maturity.
• The ability to provide for and bring up the child.
• Freedom from contagious diseases.
• A clean criminal record.

Loss of these prerequisites will lead to the loss of custodianship.

Challenges and Considerations

1. Religion and Custody
   • Religion forms a decisive factor in custody questions concerning the Muslim child. However, it is often at the discretion of the court as it considers the practical realities of a particular case and the custodial parent’s emotional and financial stability.
2. Personal Circumstances and its Impact
   • A mother’s remarriage, lifestyle choices, or behavior incompatible with Islamic values can lead to the loss of custody. In practice, however, the courts often balance the child’s interest against the strict legal interpretations.
3. Rights and Responsibilities of Custody and Guardianship
   • The court presumes that the party granted custody is able to provide financially and emotionally for the child. If the father cannot do so then the mother may request custody and guardianship for the child’s benefit.
4. Application of Foreign Law
   • To the extent foreign law is argued, the UAE courts will often apply UAE law in cases involving Muslim children. This could vary depending on compelling circumstances.

Conclusion

Custody matters in the UAE are a sensitive balance of legal provisions, practical realities, and the best interests of the child. While laws may specify at what age custody transfers from one parent to another, the real application can widely differ based on agreements between the parents, judicial discretion, and specific case circumstances. The ultimate focus of courts is the welfare of the child, which may override strict legal interpretations.

For the families battling through such complex legal waters, an experienced lawyer needs to be consulted regarding their rights and the best welfare of their children.