The dif­fer­ence be­tween cus­tody and guardian­ship

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us­tody and guardian­ship is an of­ten re­peated con­cern for ex­pats con­sid­er­ing a di­vorce in the UAE. These con­cerns are fur­ther com­pounded when the par­ties are not aware that the laws of the UAE dif­fer from those of the coun­try of their na­tion­al­ity.

When con­sid­er­ing a di­vorce, the hus­band and wife must note that cus­tody and guardian­ship are two sep­a­rate is­sues that must be ad­dressed sep­a­rately, as par­ents do not share joint parental re­spon­si­bil­ity for a child in the UAE, as is the case in England and Wales.

So what hap­pens af­ter a di­vorce?

Usu­ally in Dubai, the de­fault po­si­tion is the mother will be the cus­to­dian un­til the age of pu­berty, af­ter which cus­tody re­verts back to the fa­ther. The fa­ther shall be the guardian of the chil­dren un­til the age of ma­jor­ity, 21-years-old.

The lo­cal courts here will al­ways act in the best in­ter­ests of a child in such mat­ters.

What is the role of a cus­to­dian?

The cus­to­dian is re­spon­si­ble for the phys­i­cal pos­ses­sion of the child and their nur­tur­ing, which in­cludes their daily care within their home. Even though the mother of her chil­dren has cus­tody, she is re­stricted to spe­cific du­ties and is un­able to make de­ci­sions on be­half of the chil­dren with­out the fa­ther’s con­sent.

What is the role of a guardian?

The guardian’s role in­cludes su­per­vis­ing, pro­tect­ing, ed­u­cat­ing, pro­vid­ing med­i­cal care and re­tain­ing the chil­dren’s pass­ports. It also in­volves guid­ing the child in terms of morals, dis­ci­pline and re­li­gion.

Can any­one be a cus­to­dian? As set out in Ar­ti­cle 143 and 144 of the Fed­eral Law 28 of 2005 (Per­sonal Sta­tus Law), a cus­to­dian must be: 1. Ra­tio­nal 2. Ma­ture enough and have at­tained the age of pu­berty 3. Hon­est 4. Able to bring up and take care of a child 5. Free from in­fec­tious dis­ease 6. Not have been sen­tenced for a crime of ‘hon­our’

Also, if the cus­to­dian is the mother she must not re-marry un­less the court de­cides it’s in the best in­ter­ests of the child and she must share the same re­li­gion as the child.

If the cus­to­dian is the fa­ther, he must have a suit­able woman liv­ing within his home to care for the child, such as a fe­male rel­a­tive, and also

Does it al­ways end in a court bat­tle?

In or­der to de­vi­ate from the de­fault po­si­tion of cus­tody and guardian­ship, both the hus­band and wife can draft a set­tle­ment agree­ment (rec­om­mended with the ad­vice of a li­censed lawyer) and am­i­ca­bly agree to the terms of their di­vorce.

The par­ties are able to con­firm how cus­tody would be shared and in­sert spe­cific pro­vi­sions and con­di­tions in the agree­ment should they wish.

This agree­ment shall then be filed with the lo­cal courts along­side the di­vorce ap­pli­ca­tion and this set­tle­ment agree­ment shall be en­dorsed by the courts as a legally bind­ing con­tract for both par­ties. In an am­i­ca­ble agree­ment, typ­i­cally the mother would have cus­tody and the fa­ther would de­fine when he can visit the chil­dren, on what days and his re­spon­si­bil­i­ties.

This route ul­ti­mately saves time, money and on­go­ing dis­putes. If an am­i­ca­ble agree­ment is not reached then the mat­ter would pro­ceed as a con­tested di­vorce through the courts. This route can be time con­sum­ing, ex­pen­sive and the out­come of the di­vorce is ul­ti­mately at the dis­cre­tion of the judges at the court.

Would I need a lawyer?

In such sen­si­tive fam­ily mat­ters it is pru­dent for ei­ther party to seek proper le­gal ad­vice from the out­set from an ex­pe­ri­enced and li­censed fam­ily lawyer to guide you through the process and the le­gal­i­ties in­volved in this ju­ris­dic­tion.

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