Federal Supreme Court rules child 'must come first' in custody cases

Another milestone is reached in family law reform as senior judges rule that 16-year-old son of divorced parents may remain with his mother.

ABU DHABI // The interests of a child must be paramount in decisions on custody disputes between divorced parents, the Federal Supreme Court has ruled. The ruling is the latest in a number of decisions by the country's highest court that experts say will influence the continuing reform of the family law system, under way since 2005.

Under current law, a divorced mother's custody ends when a boy turns 11 and a girl turns 13. Judges can also follow the Islamic school of thought adopted by the UAE, Al Maliki, under which custody may be extended until a boy reaches puberty or a girl is married. However, the Federal Supreme Court has now ruled that a court should look into the interests of the child before deciding on custody, regardless of the child's age.

The court's ruling was on a case from Khor Fakkan, on the east coast. A mother of seven boys filed a lawsuit against her ex-husband asking for continuation of her custody of all the children, in addition to her financial rights under the divorce. The man argued that because his son is 16 the court should allow the boy to live with him. The Supreme Court's decision, in a ruling released yesterday, was that the teenager should stay with his mother.

"It is in his interest to stay with his mother along with his six brothers," Chief Justice Falah al Hajeri wrote. The court also took into account that the father remarried after the divorce from the mother. To make a decision about a family dispute over children's custody, according to Justice Ahmed Abdulhameed of the Federal Supreme Court, a judge should take into consideration the interests of the child, the mother and the husband. "If the judge finds a way to reconcile the three interests, he or she should ensure each one's interests," Justice Abdulhameed told The National.

"If there is a conflict between their interests, a court should give priority to the child's interests and rule accordingly." He said judges could choose between different interpretations of the law but should obey the spirit of the law. The court should decide where the child's interests lie and should not ask the child to decide between going with the mother or the father, Chief Justice al Hajeri said.

This ruling, legal experts say, helps to clarify the rights of husbands and wives as family law evolves. Ibrahim al Tamimi, an Emirati advocate who specialises in family law, described the ruling as an "important legal precedent and a step in the right direction". He said that when the law specified the age of children for custody, many legal practitioners objected. "We signed a petition and sent it to the Ministry of Justice," Mr al Tamimi said. "In the UAE, we follow a certain interpretation of Islam and that does not specify any age." He said specifying the age of custody would restrict judges from studying cases individually and make it more difficult for them to ensure the family's solidarity. "If you leave it open, judges would have the leeway to look into cases and decide where the interest of the family lies, according to each case," he said. In a recent decision, the Federal Supreme Court ruled that mothers may travel abroad with their children even if their husbands object. Previously, under UAE family law, a mother was not allowed to travel with her child outside the country without written permission from the male guardian of the child. If the guardian refused, the mother could petition a court for permission to travel. Dr Amal al Qubaisi, a member of the FNC from Abu Dhabi, said at the time of the ruling that court officials should consider family law as a starting point when examining family disputes. "That is why such rulings from the Supreme Court are essential, because it usually has the ability to look at the bigger picture and judge accordingly," she said. [e-mail]