Cross-Border Child Custody Disputes On The Rise

Posted on Dec 11, 2012 in Emirates-U.S.A, UAE Law and Business

In the UAE, there are more than 200 nationalities of various ethnic backgrounds, many of whom live with their families in the country. As the expatriate population expands, marital and child custody disputes issues are on the rise in the UAE. Likewise, child abduction cases have also increased in the country. There are several instances where parents relocate children to the UAE; sometimes to escape the more stringent child custody laws of their countries. For instance, there is no agreed procedure in place to return children from the UAE to the US. Therefore, parental child abduction cases from the US to the UAE are often difficult to resolve.

The UAE is not a signatory of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The Hague Convention provides an expeditious method to return a child internationally abducted by a parent from one member nation to another. Although, the UAE is not a member state of the Hague Convention, it is nonetheless possible to obtain appropriate child custody remedies in the UAE. The child custody issues in the UAE are governed principally by the Federal Law No.28 of 2005 (Personal Status Law). In determining issues of custody, the UAE courts may take into consideration the parents religion, place of permanent residence, income, and the mother’s subsequent marital status.

As a basic starting point under Sharia law, a Muslim mother may be granted custody of girls under the age of nine and boys under the age of seven, at which time custody may be transferred to the father. If a child has attained an age of discretion, then the child may be allowed to choose the parent with whom he or she wishes to live. If the court finds the mother unfit, custody of a child, irrespective of his/her age, can be given to the father, or to the child’s grandmother on the father’s side. In deciding which parent should get custody, the overriding factor for the court is the best interest of the children.

Custody orders and judgments of foreign courts are not enforceable in the UAE. For example, the UAE courts will not enforce U.S. court decrees ordering a parent in the UAE to return the child to the other parent. However, an American parent with a U.S. court order granting him/her custody can present that order to the UAE court, and the court may take it into consideration, although it shall not be binding in a custody proceeding in the UAE.

There are few things in life more overwhelming than the possibility of a long, heated child custody battle. Therefore, efforts should be made to reach a constructive and non-confrontational resolution of child custody issues. For example, mediation is an option where parents are not able to reach an amicable agreement between themselves about their children’s future, but do not wish to take court action. A mediator can assist in enabling parents to form a mutually acceptable decision on child custody issues. While parties should, whenever possible, take measures to reach amicable agreements regarding custody and visitation between themselves, sometimes such agreements simply cannot be reached. In such cases, the parties must ask the court to determine who should have the legal custody of their children. Also, if immediate court action is required, for example to recover an abducted child, prompt legal action should be taken to safeguard the interest of the child.

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