Lawyers seek review of laws on custody
DUBAI // Lawyers are calling for a review of a divorce law that often result in fathers gaining custody of the children when the mother remarries.
Although judges have the discretion to award custody to the mother, lawyers involved in divorce cases say there is a bias towards the father.
Diana Hamade, a lawyer and regular columnist for The National, estimated judges decide for the father in about two-thirds of cases.
"There is a serious reservation against giving a mother the children when she has remarried, unless the father actually gives it to her," Ms Hamade said.
Jouslin Khairallah, a family lawyer in Dubai, said: "I find it is very harmful for the woman.
"The child should always be considered first of all, and it should be considered the right of the woman to have another life, another family, another husband."
Some divorced women have "hidden marriages" because they are afraid of losing their children, said another lawyer, Yousuf Al Sharif.
"They [the marriages] are not registered in the court, which is also making a problem in Sharia," Mr Al Sharif said.
According to federal law, a divorced mother does not automatically lose custody when she remarries.
If her former husband hears of the marriage and objects to her keeping custody, he can bring the case to court where it is reviewed.
"Actually, a woman may remarry and keep custody of her children," said a mufti at the Fatwa Centre of the Abu Dhabi Judicial Department.
"It's case-by-case. The judge considers the best interest of the children, and if it is with the mother, then the children stay with their mother."
But lawyers said the rule led to bitter legal battles.
Ms Khairallah said some fathers filed the case because their former wives were not letting them see enough of their children, but other men used the law as a weapon.
Some invoke the law "just to challenge" their former wives, Mr Al Sharif said.
"Amira", 32, an Emirati mother of three, said her ex-husband used the law to threaten her. "He would be like, if you ever get remarried I will take them from you and you will never see them again," Amira said.
Her mother told her that her former husband did not want the responsibility of caring for their daughters - three-year-old twins and one who turns two soon.
But Amira was not reassured. "It's not the point that he will or he won't," she said. "It's the point that I don't have an option if he does."
Ms Khairallah said the government should establish a committee to support parents after a divorce, aimed at making relations more cordial.
Before the creation of the Personal Status Law in 2005, Mr Al Sharif had advocated for custody to go to the father if the mother remarries.
"He wants custody but he comes fifth or sixth in Sharia - first to the mother, after that her mother, after that maternal grandfather, after that sister of the mother," he said
Mr Al Sharif was pleased when the new law included this idea but over time he noticed problems, including the secret marriages.
A few years ago he began to ask for the law to be changed, with custody transferring to other maternal relatives or staying with the mother if she remarries.
The mufti said that "in general, nobody would take care of the children better than their mother.
"Unless there is clear evidence or testimony by the children themselves, for instance, that the mother is falling short of her duties, going astray or failing in some way or another in her commitment to their well-being, the mother keeps custody of the children."
In practice, the mother needs "lots of proof to court that she's better than the father" to keep custody, Ms Khairallah said.
Parents will scramble to find evidence against their former spouses, sometimes even filing criminal cases, she said.
Amira said that despite her difficult path, she was thankful for the rights her country gives women.
"It's about getting the women to understand that they're worth more," she said. "And the Government really cares.
"But if most women say they're fine, why would you do anything?"
Updated: September 15, 2012 04:00 AM