Child's custody may remain with mum in case of dispute

In the country, parents are the custodians and guardians of their children in various capacities.

Q-I got separated from my husband last year, and our two children are living with him. I did not fight for the custody of the kids back then because I was staying with a friend and did not have the financial means to support them. Recently, I got a job and would like to get the custody. But all negotiations with my husband have failed. Do you think I can file a case and fight for the custody of our children?
A-We assume that you and your husband are residents of the UAE and that you are not divorced despite being separated since last year. The Federal Law No. (28) of 2005 concerning Personal Status (Personal Status Law) is applicable in the UAE in disputes pertaining to children's custody.
In the country, parents are the custodians and guardians of their children in various capacities. Article 142 of the Personal Status Law 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 the custodian of a child in terms of physical custody, whereas the father is considered the guardian of a child as per the prevailing laws in the UAE.
It may be pertinent to note that the gender, as well as the age of the children, is an important factor in determining whether the custody of children shall be vested in the mother or the father.
As you have not mentioned the gender and age of your children, we shall address your queries based on the applicable laws of the UAE pertaining to both a male child and a female child.
Article 156 (1) of the Personal Status Law 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." Therefore, if the male child is under 11 years of age and if the female child is under 13 years of age, the mother may seek the custody of her children. Beyond this age, the custody may be given to the father.
However, the Personal Status Court in the UAE may grant the custody of the children to any one of the parent, keeping in mind the interest of the child until they attain the age of majority.
It may also be noted that the custody of a child may remain with the mother when a dispute arises pertaining to the custody. This is in accordance with Article 146 (6) of the Personal Status Law, which states: "The mother shall have the right of her children's custody in case of a dispute over the custody, unless the judge decided otherwise for the child's interest."
If the mother leaves the conjugal home because of differences with the father - while their marriage is still in existence - then both of them may apply for the custody of the child.
This is in accordance with Article 146 (7) of the Personal Status Law, which states: "Both the father and mother may seek the custody of the child 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."
Since you are not residing in the conjugal home - despite your marriage - you may also seek the custody of your children.
Article 1(2) of the Personal Status Law may also be helpful in this case, as it states that a UAE expat may apply his or her home country's custody-related laws in the Personal Court of UAE.
Based on the provisions of the Personal Status Law, you may approach the Personal Status Court in Dubai to file an application seeking the custody of your children.
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: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.