Changes Under the New Personal Status Law part 2: Child Custody
INTRODUCTION
The UAE has issued a new Personal Status Law, Federal Decree Law No. 41 Of 2024 on the Issuance of the Personal Status Law on the 1st of October 2024. The Law will come into effect on 15 April 2025. This new law has made significant changes to rules relating to termination of marriage, custody of children and financial rights of the wife. This part 2 in a series of articles explaining the changes in the new law. In this article, I will try to highlight the new changes regarding custody arrangements.
1. Age of Custody
Under the previous law, namely Federal law No. 28 of 2005, the age of custody for a boy was eleven while the age of custody for a girl was 13. Accordingly, the mother was to be given custody over her sons until the age of 11 and over her daughters until the age of 13. However, under the new law, the custody age ends at 18 regardless of the gender of the child. Furthermore, the child has the right to choose between the parents at the age of 15, provided that the court does not determine that the child's decision is detrimental to the child’s best interests.
In my humble opinion, this is the most important and significant change we have in the law, as it is the first time that the custody age has been extended to the age of 18 without differentiation between the gender of the child and giving the child the chance to choose and take decision on which parent he prefers to live with.
The new law has excluded cases where the child is critically ill, with mental or physical condition. In such cases, the custody of the child will remain with the mother, provided that the court does not find that the child’s best interest is affected.
2. Educational Guardianship
The new Law confirms that the educational guardianship of the child will remain with the mother. However, it gives the Urgent Matters Court the right to decide on guardianship disputes. Accordingly, a mother may approach the court if she is unable to exercise her educational guardianship rights, or a father may petition the court to transfer educational rights from the mother to him if he believes that it will serve the child’s best interest.
By granting the jurisdiction over disputes concerning educational guardianship to the Urgent Matter Court, a substantial amount of time will be saved in court cases. Previously, the Urgent Matter Court was seen to decline to decide on some cases regarding educational guardianship, due to lack of urgency, thereby obliging the party to appeal to the subjective courts for the legal process. This process would usually take up to a year and during this period, the child was typically in an unstable position regarding matters of his education, even unable to decide on the school that he must enroll in at the end of the dispute.
3. Implied Consent
Under the old laws, in the event that one of the parties wished to assert custody from the custodian as a result of a development of a new circumstance arising after the custody arrangements were decided, such a case was to be filed within 6 months from the date of knowledge of the reason of claiming custody. The reason could range from the wife marrying another individual or committing adultery, or being involved in any action that was detrimental to the child’s best interest, to any other reason that was found to be appropriate. This 6-month period was extended if the claimant had proper justification for delaying the filing of the case. However, the new law extends this period to one year instead of six months, and allows for an extension of the date if the claimant can provide a valid reason for the delay.
This change provides significant protection to the children as it was observed in earlier cases that some custody claims were dismissed by the courts as a result of this technical error involving the claimant's failure to submit a claim within the six-month period specified by the previous law. The new law's expanded protection of the children's best interests is consistent with the other child protection laws in effect in the country.
4. Travelling With the Child
The new law explicitly grants both the mother and the father the right to travel alone with the child on one or more occasions per year, provided that the total travel period does not exceed 60 days for either parent. The parents may travel after providing proper guarantee to the other parent, and in case the latter objects, they may seek a decision from the court. The law gives both parents the right to request an extension of the 60-day period if it is in the best interest of the child or in cases of medical treatments or for any other reason accepted by the court, after the court hears both parties provided that it was not difficult for one of the parties to attend the proceedings.
Thus, the new law clearly affirms and regulates the constitutional right of travel and grants equal rights to both parents. It also prioritizes the child’s best interest by allowing the extension of the travel period beyond the given two months.
5. Leaving The Family House
The new law states that if the mother leaves the family home due to any reason, she shall not lose her right of custody as long as it does not affect the child’s best interest.
6.Non-Muslim Mother
Under the old law, in case the mother was a non-Muslim woman, she would not have the right to claim custody over her children over the age of 5.
The new law has amended this rule granting the court the right to maintain the custody of a minor child with the non-Muslim mother under certain conditions to be decided by the court.
7. Children’s Identity Cards and Passports
Under the old law, the children’s Identity Card was to remain with the mother while the passport was to remain with the father unless the mother needed to travel with the child. In such cases, she would be entitled to procure a court order to have the passport delivered to her for the purpose of travel. She would also be required to return the passport at the end of the travel.
Although the new law confirms the above provisions, it addresses an additional scenario in which the father is granted the authority to claim custody of the children's identification cards in the event where the documents have been used for travel to harm the interests of the guardian (father), or where they have been used against the child’s best interest or to achieve personal benefits for the custodian without legitimate reason.
Thus, the new law seeks to resolve instances where the Emirates ID is used to deceitfully exit the UAE, as GCC nationals are generally permitted to travel within the GCC countries without the need for a passport. It also addresses all cases where the custodian attempts to use the children’s IDs in a manner that compromises the guardianship rights of the father.
8. Criminal Sanctions
As per article 251, the new law criminalizes the act of not delivering the child’s documents to the party who has the right to hold the documents, with a potential sentence of imprisonment or a fine between AED 5000 to AED 100,000. Furthermore, if a custodian travels with the child without the consent of the guardian or the court, there could be a potential fine between AED 5000 to AED 50,000 AED or a jail sentence.
9. Significant changes to the relocation rules
Under the old law and as per articles 151 and 152, the custodian shall not leave the country without the father’s consent and she may lose the custody completely if she relocated permanently to another country without the father’s consent if the country that she relocated to is far enough to the level where the father cannot travel and return to this country on the same day using road transportation (regular transportation).
The new law removed this commitment on the mother which opens the gate for potential disputes around the rights of the mother for relocation and the right of the father to claim custody on the basis of the unauthorized relocation of the child.
Upon coming into effect, the New Law will be applicable to ongoing cases in the court that have not received a final order. The law will apply to Muslims, Emiratis and Expats, across the seven Emirates. Further articles will be released to cover the other substantial changes that have been made in the new law.