Summary:
In my legal advice column this week in The National newspaper, I advise an expatriate who is going through a divorce on what legal grounds he has to go back to his country with his children, overriding the presumption that his estranged wife will be granted custody of the couple's two young children. Under UAE law, moving to your home country is one situation that could allow the father to lawfully gain custody but there are several provisos to this ground, as outlined in the article below.
Question
My wife and I are Muslim Indians and have been living in Dubai for 10 years. We have two children but are currently going through divorce in local courts. As far as I am aware, upon our divorce, my wife will be granted custody of our children (aged 5 and 7) and I will only be granted visitation rights. I would like to become custodian of our children and take them back to India to live with me. I read online that, if a guardian proves that their residency visa has expired for a valid reason, that the court will accept, then the court could allow the guardian to take the children to another country. I read that the mother will be given a choice to join them or not. How can I the local law serve my rights in this matter?
Answer
In accordance with article 151 of the UAE Personal Status Law (Federal Law No. 28 of 2005), you may have the right to claim the custody in the following situations:
- If you are permanently moving to your home country
- If it is impossible to go to your country and return to see your children on the same day by car
- And if it is found by the court that this move was not done with an intention to harm the mother of your children.
Article 152 of the UAE Personal Status Law enables you to become a custodian should your wife refuse to follow you to the country where you have moved. However, as per UAE law you have to file your case within 6 months from the date of your move. Should you fail to do so, you will have to prove, in court, the reason why you did not file the case in time.
To claim custody of your children - who are deemed young - you will have to persuade the court that you have a female relative to take care of the children. You may depend on your mother, sister or even your second wife, should you have one.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.