Mother can't move child outside UAE without father's nod
In the UAE, parents are the custodians and guardian of their children in various capacities.
Me and my wife have decided to go for a divorce in the near future. A couple of months back, my wife travelled with our daughter out of Dubai and has not returned here as agreed. My wife is hesitant to come back to Dubai as she fears a travel ban which may be imposed on the child. For a few days now, she has been ignoring my messages and I do not have any contact with my daughter.
We assume that your wife has travelled to her home country along with your daughter. It may be noted that the provisions of Federal Law No. (28) of 2005 concerning Personal Status (the 'Personal Status Law') are applicable. In the UAE, parents are the custodians and guardian of their children in various capacities. Article 142 of the Personal Status Law of the UAE defines custody as "keeping, bringing up and taking care of the child without interfering with the right of the guardian of the person". Further, it may be noted that usually the mother is considered as the custodian of the child as having physical custody whereas the father is considered as the guardian of the child as per the local laws.
As per the Personal Status Law, the custody of a girl child lies with the mother and it terminates when she attains the age of 13. This is in accordance with Article 156 (1) of the Personal Status Law which states: "The custody awarded to women shall terminate upon the child reaching the age of 11 years, if a male, and 13 years, if a female, unless the court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest." We assume that your daughter is yet to attain 13 years of age, and therefore she would still be under the custodianship of your wife.
It may also be noted that the custodian (may be mother) of a child may not take the child to travel outside the UAE without a written consent issued by the guardian (may be father) of the child. This is in accordance with Article 149 of the Personal Status Law which states: "The custodian may not take the child for travel outside the state without the written consent of the guardian of the person. If the guardian abstains from approving, the matter shall be referred to the judge." Usually in the UAE, the father is the guardian of their children and we assume that your daughter is residing in the UAE under your sponsorship.
Further, it is unlawful for the mother from travelling or moving the child out of the conjugal home without the written permission of the father. This is in accordance with Article 150 of the Personal Status Law which states: "(1) The mother may not take her child for travel or move him out from the conjugal house during the existence of a conjugal relation or during the revocable divorce waiting the period without his father's written consent.
(2) After the irrevocable divorce, the mother may move the child to another city within the state unless such movement affects the child's education or causes harm to the father or makes him suffer unusual hardship or costs for visiting the child."
Based on the aforementioned provisions of law, in the UAE both the father and the mother of the child may apply for his/her custody in case of differences arising between them, provided the mother leaves the conjugal home even if the bond of marriage has not been dissolved. This is in accordance with Article 146 (7) of the Personal Status Law which states: "Both the father and mother may join the children to them if they have a dispute and the mother has left the conjugal house even if their conjugal relation is still existent. The judge shall decide on their application depending on the children's interest." Therefore, it may be noted that since your wife has left the conjugal home with your daughter despite the conjugal relation prevailing, you may seek the custody of your daughter and also seek to bestow your guardianship rights in the UAE. As a father and as a guardian you are entitled for visitation rights of your daughter even though you are legally divorced or separated.
Based on the aforementioned provisions of the Personal Status Law, in case your wife returns to Dubai/UAE with your daughter, you may approach the Dubai Courts in order to apply for a travel ban which would prohibit your daughter from travelling outside of the UAE without your consent. Further you may approach the Courts in your home country and file application for divorce and custody of your daughter under the prevailing personal laws in your home country or under the provisions of the law under which you are married. Prior to this, you may also approach your embassy/consulate in the UAE and report that your wife has left the UAE along with your daughter, without your consent and is not allowing you to contact your daughter.
Know the law
After the irrevocable divorce, the mother may move the child to another city within the state unless such movement affects the child's education or causes harm to the father or makes him suffer unusual hardship or costs for visiting the child.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom, Singapore and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: email@example.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.