Many family law cases in the United Arab Emirates follow Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law), to which I will be referring to in this blog, to determine which parent is awarded custody. In this particular area of law, the Court is awarded a great deal of discretion, but it is important that their decisions remain consistent. Normally in child custody cases, the Court’s consistently award custodianship to the parent that will best serve the child’s needs.
U.A.E. family courts are known to value childrens’ interests in custody cases. In a case recently filed in the UAE, a divorced father from the United States, who is currently living in the U.A.E., is hoping to the courts will find it in his 16 month old daughter’s best interests to stay with him, as opposed to being sent to her mother in the US. Although the mother has a court order from a US judge giving her custody, U.A.E. courts do not enforce foreign custody orders. The U.A.E. reasons that it would be a resignation of its responsibilities to a child under its protection to surrender the child’s fate to a foreign court, whose system might be unfavorable to the child's welfare. (This type of reasoning is most prominent in international child abduction cases.)
Although judges typically grant decisions based on the child’s needs, the laws set out for family issues already maintain the importance of the child’s best interests. For example, Article 156 of the Personal Affairs Law, states that the custody of a child shall go to the mother, until 11 years of age for a boy and 13 years of age for a girl. Yet, in that same clause, the law sets out that this circumstance can change if the court determines something else is best for the child. The court’s discretion is dependent on the circumstances of each case. Or taking Article 145 for example, in which a mother shall not have custody of the child if she is of a different religion, the clause then gives the judge discretion to award the mother custodianship if she will best fulfill the child’s needs.
Even laws that may seem counterproductive to the child’s best interests at times are based on the condition that the circumstance favors the child. For example Article 144 of the Personal Affairs Law states that a mother that has remarried shall not be awarded custodianship; however, this clause is conditioned on the fact that the court may deem it to be in the child’s interests to stay with the mother even though she has remarried.
The U.A.E. family laws are of the most complex in their legal system; however, they allow a certain range of flexibility for a judge to make orders that best meet the needs of the child.
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