An invitation to limit custody to the mother of the child in custody, in return for a warning against the stepfather's harassment

Legal controversy over custody conditions

His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, visited the child, Mira Hamad Saud, the sister of the child, Wadima, while she was in the hospital last week, and ordered the preparation of a federal law on child protection.

Emirates today

The case of “Wadimah” and her sister, “Mira”, in addition to the crime of leaving a divorced mother with her five children for about 10 months in the care of her two maids, and her almost complete estrangement from them throughout this period, sparked a legal debate about the conditions of custody, as lawyer Ibrahim Al-Tamimi called for the enactment of a law that requires the mother to retain the right Custody in all circumstances and circumstances, as long as it is not proven that she is not qualified to raise her children, while the researcher and family counselor, Widad Lootah, confirmed that this call ignores the harassment that the fostered child may be subjected to at the hands of the stepfather.

In detail, lawyer Ibrahim Al-Tamimi demanded the introduction of amendments to the Personal Status Law, which is currently in force regarding child custody, so that the mother is given the right to retain custody of her children even if she marries another, or if the children reach the legal age to drop the custody, stressing that «this procedure would eliminate 90% of the social problems that children face after divorce.

The custodian of bad conduct is not insured against the child in custody

-- Article (156) of the Personal Status Law states in its first paragraph that "the term of office for women ends when the male reaches eleven years of age, and the female reaches thirteen years, unless the court decides to extend this age for the benefit of the child under custody until the male reaches the age of and the female marries."

The ruling of the Federal Supreme Court has established that custody is related to three rights, which are the right of the father, the right of custody, and the right of the fostered child, and these three rights, if they meet and it is possible to reconcile them, are all proven.

But if they conflicted, then the right of the fostered child took precedence over the right of others, because custody revolved around the benefit of the fostered child. When it was achieved, he must be transferred to him without regard to the right of the father or the right of the custodian.

-- The third paragraph of Article (143) of the Personal Status Law stipulates that “trust is required for the custodian,” which means, according to what was stated in the explanatory note to this law, that “whoever does not have a trust, how can he be entrusted with the interest of the child in custody himself, his body, morals, morals, and religion Whoever has a bad conduct in such a way that he does not believe in the morals of the fostered child, then he is not eligible for custody, since the young person imitates those who adhere to him, and weaves according to his example, and that if debauchery leads to damage to the interest of the child, then he is taken away from him, since custody takes into account the right of the child in custody before the right of the incubator ».

The interest of the child determines the custodian

The Federal Supreme Court finally upheld the return of custody of a 13-year-old girl to her mother, after she dropped it in favor of the father.

And it ruled to establish custody for the mother, and extend it until the girl gets married, indicating that “the young girl is at an age in which she cannot dispense with the custody of her mother, and nothing has been proven in the papers that challenges the authority of this mother to carry out the duty of custody.”

In another case, the Federal Supreme Court revoked the custody of four daughters on behalf of their father in light of what was proven to it that he drank alcohol and was not trustworthy in their upbringing, stating that “the father has lost his trust, and he is not fit to take custody of the fostered children, on the basis that the interest of the fostered child is preceded by law.” To take into account the custodian’s right to custody, even if this leads to the fostered child remaining with the mother after the end of the custody age, in implementation of the provision of Article (156) of the Personal Status Law.

vision law

The Ministry of Justice issued Ministerial Resolution No. (1150) of 2010 regarding the regulation regulating the vision of foster children, which included (25) articles about the one who is sentenced to custody of the child, or who is under his custody, and the regulation of vision.

The decision stipulated that “the judge decides to see the following beneficiaries: one of the parents, in the event of their separation, or their disagreement while the marriage is still in place, and the departure of one of the spouses from the marital home due to a dispute, and the close relatives of the fostered child, if one of the parents of the fostered child is dead, or absent, or the fostered person resides with Other than his parents, and that the vision be in a decent place, spreading reassurance in the same child in custody, and both the custodian and the one who is sentenced to see must hand over the child in a decent condition.

And the decision stipulated that “the judgment issued by sighting shall be enforced forcibly if the person in the custody of the fostered child refuses to implement it, and if the parties do not adhere to the executive document, the matter shall be raised to the competent judge to decide what he deems appropriate, and if the incubator or the convict fails to implement the sighting, this shall be recorded in the execution report, and it shall be indicated In it is the number of times in which the refusal to implement the vision was repeated, or either of them violated the agreement or was late in its dates, with an indication of the defaulting party, and if the breach was on the part of the custodian, then this is considered a breach of the trust condition, and it is considered when requesting the dropping of custody, even if the breach is on the part of The judgment is for him, so the judge may prevent him from seeing for a specific period, and the judge in any case takes into account the interest of the child in custody.

He pointed out the importance of keeping the custody of children with their mother, unless it is proven that she is notorious, and neglects in their upbringing and care, stressing that the mother by nature will take care of her children better than the stepmother, calling for a return to what the Maliki school of thought declared regarding keeping custody of children with their mother. After her separation from their father, for the benefit of the fostered.

As for the researcher and family counselor, Widad Lootah, she stressed the need to expedite the establishment of a special association concerned with following up the affairs of children after divorce, to determine the eligibility of the custodian in providing social, psychological and living care for them, so that this association includes specialists and psychological and social consultants, to provide the assistance that children need. They fall victim to domestic violence as a result of divorce, and the provision of foster homes for children who face social problems with their families during the custody period.

She stressed the importance of giving this association, and subsequently the Community Development Authority, wide powers to conduct inspection visits to the homes of foster children to ensure that they provide health, psychological and appropriate living care for them, in addition to the role of this association in educating the fosterer on how to care for children in the post-divorce stage, including Their upbringing ensures proper social upbringing and they become good members of society.

Lootah considered that the parents who are proven to be negligent in taking care of their children, whether during the continuation of the marital relationship or after the divorce, do not deserve their custody, noting that the responsibility for the crime of the child “Wadimah” and her sister is borne by the father, mother and grandparents, in addition to officials in the two girls’ school and the educational district, wondering : “How can a child be absent for three months and neither the mother nor the school or educational district initiates a question about the reason for her disappearance for such a period?”

required care

Lootah monitored some cases of divorced mothers who neglected in raising their children, as they leave their children throughout the day with the maid who plays the role of the mother on behalf, and some of them leave their children with the grandmother or grandfather, and they are in dire need of someone to follow up on their affairs, noting that it is not possible The judiciary is decisive in the obligation of custody with the mother in all cases, and the decision is subject to the interest of the child in the first place.

Attorney Ibrahim Al-Tamimi agreed with Lootah on the importance of establishing an institution or association specialized in child affairs after the separation of his father, so that it would be a supervisory body that would supervise and verify the extent to which this child receives the required care, and that it would act as a guardian for him until he reached puberty, and that it would have powers to summon the custodian and investigate. With him, and referring him to trial in the event that it is proven that he abused his child while he was in his custody, considering that this would guarantee the rights of the child, and reduce the crimes of assault against him in the post-divorce stage.

Lootah confirmed that the articles of the Personal Status Law regarding the regulation of child custody issued in 2005 do not need amendments or additions, as they are characterized by flexibility and renewal. He set clear conditions for the eligibility of the custodian, including good conduct, behavior, and reputation. If it is proven that the father abuses drugs, alcohol, or deviant behavior, then he is not entitled to retain custody of the child, even if he exceeds the legal age. He also specified dropping custody of the child from the mother in the event she married a woman. another, or when the child reaches the legal age, unless the judge deems otherwise.

Complete care

Lootah pointed out that the demand of some that the mother retain custody of her children in the event of her marriage to a foreigner is a misplaced proposition, and includes ignoring previous evidence confirming that children, male and female, were subjected to cases of harassment from mothers’ husbands.

There are also cases in which the mother's behavioral deviation was proven after the divorce, which prompted the legislator to drop custody from the mother in the event that this was achieved.

On the other hand, Lootah adds, the law allows the father, in the event of his marriage to another woman, to retain custody of the children, provided that he is qualified to do so, and that he provides them with full care, noting that children in adolescence mainly need their father’s follow-up and supervision over them. .

And the Federal Supreme Court confirmed, in several rulings it issued in previous times, that “the custodian of bad conduct is not eligible for custody, and he does not insure his children, as the young person imitates those who adhere to him and weave according to his example,” indicating that “the interest of the fostered child is legally prioritized over observing the right of the custodian.” In custody, even if this leads to the child remaining with the mother after the end of the custody age.

She pointed out that she very carefully examines custody case papers, targeting the interest of the young, in order to make sure of the availability of the conditions and guarantees in the incubator, as what is important to her is achieving the interest of the young, and providing the appropriate environment for his upbringing, whether with the mother or father, and she decides In some cases, the custody of the child is not removed from his mother when he reaches the age of 13, targeting his interest, as it is important to raise him among his siblings.

Human tragedy

The Dubai police intervened to save five children, ranging in age from two and a half years to 10 years, who were left by their mother (a citizen), who has the right to custody of them after her divorce from the father, in a house alone for about 10 months with two maids without her care.

The Director of the General Department for Human Rights, Colonel Dr. Muhammad Al-Murr, told Emirates Today that the five children, three boys and two girls, are living a human tragedy by all standards, pointing out that their mother, who is concerned with their care, used to secretly visit the house and ask the maid to keep them inside a room during Her quick visits home so they don't see her.

The Department of Women and Child Protection in the General Department of Human Rights transferred the children to the father's house temporarily, until the eligibility for custody is reviewed, and obligated him to take care of them. A specialized team follows up on the children's condition, especially in light of the reluctance of family members on both sides to live with them.

The mother justified her behavior with contradictory and illogical statements, according to the Director of the Women and Child Protection Department, Major Ishaq Muhammad, who indicated that she claimed to suffer financial problems that hinder her care for the children, without providing a convincing reason for abandoning them in this way.

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