Rare sole custody order in father's favour made by Abu Dhabi Civil Family Court

Judgment is unusual in that, previously, a mother was typically named custodian after legal proceedings

Both parents are given equal consideration in a custody battle under the new divorce law for expatriates and non-Muslims in Abu Dhabi. Photo: The National

Abu Dhabi's dedicated family court for non-Muslims has granted full custody to an expatriate father, in what was described as an "historic" ruling by his legal counsel.

The Abu Dhabi Family Civil Court was established in December 2021 to better serve the capital's expatriate residents in family matters such as marriage, divorce and child custody.

Customarily in such cases, a mother would be awarded full custody of children until they reach puberty.

It is rare for a father to be granted full guardianship when the mother is present in court, available to provide care and has submitted a request for sole custody.

There is interest in the case because mothers have always approached arrangements under divorce as a fait accompli – that they would look after the child

Byron James,
partner at Expatriate Law

The court ruling last week gave the expatriate father full custody, but permitted the mother to see the child when she is in the UAE provided this is agreed to by the father.

Significant step for UAE legal system

Byron James, partner at Expatriate Law, who represented the father, described the order as historic because it upheld a key non-discriminatory clause on which Abu Dhabi’s newest court was founded – that gender would not be the deciding factor and the rights of both parents would be given equal weight.

“It is very unusual for a mother not to be the custodian,” Mr James told The National.

“Ordinarily, the mother would have more chance at succeeding because if a mother is available to provide care, judges would have no problem with them being the custodian.

“This is a good demonstration of how fathers are dealt with under the new civil family court regime."

The dedicated family court for non-Muslims opened in Abu Dhabi to bring the emirate in line with international legal practices.

Legal procedures based on Abu Dhabi’s civil family court system were introduced across the UAE in February.

The Abu Dhabi case concerns a boy under the age of 11 whose parents were divorced. The expatriate family has lived in the UAE for several years.

When the mother left the UAE after the divorce, the child was left in the care of the father.

Specific details about the family have not been shared to protect their privacy.

The father filed for custody on grounds that included the mother spending long periods outside the country and not caring for the child.

According to court documents, the mother said she returned to the UAE to ask for full custody and had to travel overseas to search for a livelihood to provide for herself and her child.

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  Officials open the Family Court at Abu Dhabi Judicial Department in 2021. Photo: ADJD

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  British couple Craig Lindsay and Sarah Goodman marry in a civil ceremony in February 2022. Victor Besa / The National

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  Itamar Bareket, from Tel Aviv, places the ring on to his wife-to-be Nogah's finger at the civil court in Abu Dhabi. Khushnum Bhandari / The National

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  The couple chose Abu Dhabi because civil marriages are not allowed in Israel. Khushnum Bhandari / The National

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  The court also handles divorces and other family matters such as inheritance. Victor Besa / The National

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  The process involves paperwork and a ceremony with an official. Victor Besa / The National

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  At least dozens of couples have been married at Abu Dhabi Judicial Department and many more plan to do so. Victor Besa / The National

No longer fait accompli

The interest in the case stems from the fact that in the Emirates, historically, the mother has been awarded custody.

Under the new civil law announced in 2021, non-Muslims are allowed to marry and divorce in a non-Sharia process.

The Abu Dhabi Civil Family Court allows for joint and equal custody of children granted to both parents after a divorce.

In case of a custody dispute, the court can be asked to intervene and make a decision with the best interests of the child always the primary consideration.

Previously, only the mother would have custody of the children until they reached puberty, classified as 11 years old for girls, and 13 for boys. The father could claim custody only once the child reached those ages.

“The court has said this was a father who has demonstrated he is able to look after the child and the mother can’t just turn up and ask for custody,” Mr James said.

“There is interest in the case because mothers have always approached arrangements under divorce as a fait accompli – that they would look after the child.

“What this decision means is there is no presumption that this is the case.

“There will be scenarios where fathers are capable of looking after a child and may be more capable and available than the mother.

“In those circumstances the court will have no problem in saying the child should live with the father.”

Positive for fathers

The new family law aims to better support expatriates in the emirate and includes equal legal rights for men and women.

“This is a strong statement by the Abu Dhabi Civil Family court and a really good example of the non-discrimination on gender in action," he said.

“It’s positive for fathers who would otherwise be worried about trying to persuade a judge why it’s important for them to want to spend time with their children.

“And mothers will know that in circumstances where a father has played an active role in a child’s life, the court is going to support that and say we want that to continue.”

The court holds sessions in English and Arabic and covers cases including marriage, custody, divorce, paternity and inheritance.

Orders can be challenged in the court of appeal in Abu Dhabi.

No appeal has yet been made in this case.