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Custody and guardianship are probably the two most discussed concepts in UAE family law. The current law on family matters delimits both to a certain extent and confers on parents rights over their children accordingly.
With the implementation of the new federal law on the personal status of citizens, guardianship and guardianship are defined differently for Muslims and non-Muslims residing in the UAE. While there is no clear distinction between the two under the new Personal Status Law for Non-Muslim Citizens, the 2005 Federal Personal Status Law, structured in accordance with Shariah principles and applied to Muslims, separates the two concepts.
How do the two laws define custody and guardianship?
Pursuant to Articles 146 and 156 of the Personal Status Code, custody of the children after divorce rests with the mother until the boy reaches the age of 11 and the girl reaches the age of 13. Guardianship means providing for the needs of a child such as education, supervision, protection and proper upbringing, and is vested in the father under section 181(1) of the Act. On the contrary, Article 10 of the “Civil Personal Status Law” stipulates that the right to custody is an equal right of both parents, regardless of the age of the daughter, and is shared equally.
If you are a parent concerned that your child may be abducted by your spouse following a divorce, or taken out of the country without your permission, you may consider applying for a travel ban for your child, regardless of which law you are bound by. The following articles answer some of the most frequently asked questions about the travel ban and travel restrictions for children.
Who has the right to keep the child’s passport and other documents?
Under section 157(1) of the Personal Status Act 2005, a father has the right to keep his child’s passport unless required for travel purposes. Other documents, such as birth certificates, ID cards, etc., can be kept by the mother while she is in custody of the child.
Under what circumstances can parents travel with their children after divorce?
According to article 149 of the Personal Status Code, a mother is not allowed to travel with her child without the written permission of the father. As stated in Article 150, paragraph 1, if she is still unmarried or is in a waiting period after divorce, she may not leave the conjugal residence with the child without the written permission of the father.
Likewise, according to article 151, paragraph 2, when a child is in the custody of the mother, the father cannot take the child out of the country without the mother’s written consent.
Can I move my child to another city while in custody?
After the waiting period is over, the mother can transfer the child to another city during her custody if it does not affect the child’s education or does not require the father to make unnecessary efforts to understand the child’s situation. This is under section 150(2) of the Personal Status Act. However, if the father finds it difficult to fulfill his duties towards the child, the mother’s custody may be forfeited pursuant to section 152(2) of the law.
What should I do if the father doesn’t want to give me the child’s passport?
If necessary, if the father refuses to hand over the passport to the mother, the judge may order the mother to withhold the passport pursuant to article 157, paragraph 2, of the Personal Status Code.
Does the new Personal Act apply the same to the travel ban for children?
Article 15 of the new “Civil Personal Status Law” stipulates that if there is no special provision in the new law, the current national law shall apply. Although the new law does not distinguish between custody and guardianship, which is divided equally between parents, the travel ban and other restrictions on children in the event of separation will be the same as the new law.
Are there any other rules for traveling with children after divorce?
The Dubai Courts have established a comprehensive list of travel controls for children under guardianship pursuant to Article 14 of Dubai Decision No. 3 of 2021, which applies to the procedural manual for organizing personal status matters in the Dubai Courts, but only in the Emirate of Dubai. Therefore, a child is granted the right to travel, and if he/she is prevented from traveling, it will be determined based on a number of factors, including but not limited to:
- Evidence that the guardian or guardian is planning to travel with the child, or has previously traveled with the child without the consent of the other parent
- there is evidence that such travel can negatively affect the child or put him at risk
- Both the child and the person applying for the travel ban hold a valid UAE residence permit
- The person applying for the travel ban is within the UAE
Article 14 also sets out the rules that parents need to follow when they wish to travel with their children, and based on these rules, the court will determine whether the child is entitled to travel with a guardian or guardian, on a case-by-case basis.
The content of this article is intended to provide general guidance on the topic. Expert advice should be sought depending on your specific situation.
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