Legal warned against the exploitation of children in legal disputes

The interest of the children determines the validity of the agreements to waive "custody"

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The Federal Supreme Court affirmed that custody is a right for the child and not the custodian, and that waiving it is void.

Whereas legal and social specialists stated that the interest of the child is considered the priority of care and overrides the interest of any other party in cases of custody dispute, so the mother may demand to restore custody of her children again even if she voluntarily waives it in a documented agreement because custody is not an absolute right that the custodian can waive. It is a legal right for the child in custody.

And they warned against the exploitation of children in marital disputes in court yards, pointing to Khula 'cases, in which wives waived, according to an agreement with their husbands, custody of their children in exchange for divorce, which is a departure from norms and human instinct, and they demanded a psychological evaluation of the mother who voluntarily waives Custody of her children.

They revealed the insistence of some husbands to extract the right of custody from their wives in retaliation for them or for coercing them into certain matters, or to reduce the alimony amounts owed to the children, and in return, wives practice deceptive methods by waiving custody as a way to obtain a divorce, and then claim it again.

"Emirates Today" monitored a discrepancy in court rulings regarding the legality of the ceding agreement between the spouses on custody of children, between the recognition of it as a binding legal document for both parties, and the assertion of its nullity since custody is not an absolute right for the custodian, and the affirmation of the mother's right to return from him and to claim custody.

The Federal Supreme Court affirmed in a case its consideration of the dispute over child custody after relinquishing it, on a legal principle, according to which the spouses may not agree to drop custody or alimony for children in exchange for divorce, indicating that the Personal Status Law took the opinion of the Hanafi and some Maliki jurists on this issue , Stressing that custody is a right for the child and not the one who has custody, and that waiving it is considered void.

In another incident, the court overturned a ruling that ruled to drop a father's custody of his five-month-old daughter, transfer her custody to her mother, and oblige him to provide comprehensive alimony for the child, explaining that the mother had waived with her consent the custody of her child before the Family Guidance Committee in a report signed by the parties and has the power of an executive document. The party to revoke it, revoke it, or amend it except by mutual consent, and the loser by choice does not return.

The legal advisor, Dr. Youssef Al-Sharif, told Al-Emarat Al-Youm, that custody is the protection and care of the child, so it is the right of the child (that is, the children), and it is not the right of the custodian who is a father or mother or others who are eligible for custody, indicating that custody of children is from Most of the issues that arise with the signs of the spouses' disagreements, and one party may even exploit it to put pressure on the other, there are husbands who insist on extracting this right from their wives in any way, in retaliation against them, or for coercing them into certain matters, and on the contrary, some wives exploit them as a means of blackmailing husbands and subjugating them.

He pointed out that the rulings of the Sharia judiciary in the state have repeatedly ruled that custody should not be taken into account in relinquishing custody because it does not oblige the concessor and does not waive his right, but rather does not gain this right, calling on both parties to put in their account that custody is not a weapon to avenge the other, and to enjoy the culture of division with respect .

For his part, a first legal advisor, Wajih Amin Abdulaziz, considered that custody is one of the aspects of Islamic Sharia’s care for children, as the child needs someone to take care of him and take care of his affairs, and it is one of the duties of both parents, but if they separate, the mother is more entitled to it in childhood, even if he violates This is the interest of the self-guardian, as it is a manifestation of the advancement of Islamic law, because women are more affectionate and eager to take good care of him and more patient to endure hardships for the sake of his custody.

He added that in the event of divorce, and the wife relinquished a free and chosen one, or an excuse for custody of her children, whether with an official documented document, or by conciliation and settlement agreement concluded between the two parties, then she has the right to claim custody again.

Abdulaziz pointed out that the Dubai Court of Cassation stated in a previous ruling that, although it was decided according to an explicit provision in the second paragraph of Article (110) of the Personal Status Law that “it is not permissible to compromise in divorce to waive the alimony or custody of children.” It is a matter of priority in every case in which the spouses agree to divorce and end the marital life between them, it is not valid to agree to waive alimony or custody of the children, which means that the mother in the divorce agreement explicitly or implicitly waives custody of her children or their expenses, does not prevent her from re-claiming In custody again, because this waiver is not related to her legal rights, but to the rights of her young children.

He emphasized that the agreements concluded between the spouses regarding custody or alimony of the child possess a temporary authority, so that the change and alteration are responded to by the abortion due to the change of its motives, and therefore it is permissible to reconsider its subject if the foundations on which it was based change and considerations arise that dictate the ruling other than what the previous rulings decided or Contrary to the agreements concluded in this regard.

He pointed out that the judge’s ratification of the conciliation contract or the agreement to assign custody pursuant to Article 79 of the Civil Procedure Code is not based on the principle of separation of litigants. Rather, it is limited to proving what happened before him in terms of agreement and documenting it according to his state authority and not his judicial authority, and then This agreement is nothing more than a contract that does not resolve any subsequent custody dispute.

And Abdulaziz stated that what is established in the Malikite doctrine is that if the right of the incubator is forfeited with an excuse such as a disease with which the incubator is unable to do the matters of custody, then this right belongs to her if this excuse is removed, and some jurisprudential opinions have indicated that custody is not an absolute right for the incubator, but rather a right of God Almighty For the cuddled person, it may not be waived.

For his part, Professor of Culture and Society at the Canadian University in Dubai, Dr. Saif Rashid Al-Jabri, warned of the negative social, psychological and family effects resulting from the exploitation of children in judicial disputes, and made them the object of bargaining between parents, such as the commodity that is bought and sold, and an agreement was concluded to waive it.

He stressed that the Child Law “Wadima” must be activated, and strict penalties applied to anyone who endangers the child's life and threatens his psychological and family stability, pointing out the need for a mother who wants to give up custody of her children in exchange for khula is subject to a psychological evaluation, and work to refine her intellectual behavior that He influenced her decision to relinquish the custody due to her, which no one may dispute with her, or to pressure her to withdraw from her this quality that God had created.

He stressed that the father who is bargaining over the divorce of his wife by khula by withdrawing her custody of the children, is also in need of an intellectual reassessment and the formulation of his family culture and training to understand the meanings of parenthood and to preserve the interest of his children and their future, psychological and family stability, and not to exploit his hatred for his wife to lose custody of her children.

He stressed the importance of the concerned authorities ’intervention in protecting children in such conflicts that threaten the stability of children, make them victims of irresponsible parental disputes, and provide them with protection and a suitable social environment for a healthy and healthy upbringing.

While the head of the Social Support Department at the General Department for Human Rights in Dubai Police, Fatima Al-Kindi, stated that there are variables that must be taken into account when reconsidering the status of child custody, whether it was previously revoked by a court ruling by one of the parents or its owner voluntarily relinquished it, pointing out that the most important of these are Variables change the status of the custodian, such as being involved in drug use, for example, or something happens to him that makes him dishonorable to children, or his mother, who received custody, died due to her presence.

She emphasized that the main criterion is the interest of the child in custody, even if the matter comes to providing an “alternative custodian” if something breaks the parental capacity. For example, if the mother relinquishes custody or is withdrawn from it for some reason, and the father obtains it, and then the father is involved in what he loses his capacity, then the interest of the children requires Providing a sitter from the family, because it is necessary in family issues to take into account the human aspect and the future of children, in addition to Sharia as a first reference.

Custody disputes

The head of the social support section of the General Department for Human Rights in Dubai Police, Fatima Al-Kindi, confirmed that if the decision could reach the point of granting custody to non-parents, then it is logical to move from one of them to the other if changes arise that necessitate that, whether the nursery was dropped before or It was abandoned by those who claim it again.

Al-Kindi pointed out that disputes over custody from the reality of the hundreds of cases that she dealt with are thorny and complex, and in which stubbornness enters a lot, so the judgments issued regarding them cannot be considered final, but rather each case must be considered separately, if a mother waives custody of her children for some circumstances, then Her conditions have changed, so she has the right to claim custody again, and according to the case study, her new situation, and the interest of her children, it shall be judged or not.

3 custody rights

A first legal advisor, Wajih Amin Abdulaziz, stated that the judicial rulings were based on a general legal principle that custody relates to three rights: the right of the child in custody, the right of the mother, and the right of the father, and these rights, if they are combined and reconciled, are all proven, but if they conflict, the right of the child in custody is in advance. On others;

Because the custody is in the interest of the child.

Abdulaziz pointed out that it is permissible for a wife who voluntarily relinquished custody of her children, and the child is in the hands of the custodian who relinquished to him, or there is something detrimental to his interest and benefit, so she may request the restoration of her custody again on the basis that the interest of the child is the first to care as long as she is qualified for her. The conditions stipulated by Articles (143) and (144) of the Personal Status Law in custody are fulfilled, the most prominent of which are: reason, trustworthiness, ability to raise and care for the child, safety from dangerous infectious diseases, and not to marry a foreigner to the child, unless the court decides otherwise.

Custody Right

Legal advisor Dr. Youssef Al-Sharif confirmed that custody is not an absolute right for the custodian so that he can waive it by agreement, rather it is a right for the child in custody himself, so it is not permissible for the one who has proven custody to waive it, so the mother cannot waive the custody of her children, because this is a waiver of a right that he possesses Others;

That is, the foster parents themselves.

The agreement to waive custody or to acknowledge this assignment was considered not enforceable, and it is considered one of the numbered declarations in the law that may be revoked, so whoever relinquishes custody may recover it or claim it as long as it meets the conditions for its entitlement according to Sharia and law.

• The main criterion is the interest of the foster child, even if the matter comes to the provision of an "alternative custodian."

• Spouses use custody as a weapon to avenge or blackmail the other party.

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