x Abu Dhabi, UAEMonday 22 January 2018

Common sense on custody disputes

Child custody cases sometimes hinge on who has the better lawyer, not common sense about the child's welfare.

In a landmark ruling last year, the UAE Supreme Court said that the interests of a child must be paramount in decisions on custody disputes between divorced parents. The legal principle was at odds with the current law that a mother's custody ends when a boy turns 11 and a girl turns 13, but judges ruled the spirit of the law stipulated the child's interests come first. Unfortunately, decisions sometimes still give priority to the letter of family law rather than the child.

As The National reported yesterday, parents who lose custody say they often see their children for only a few hours a week because of the terms determined by judges. Parents and experts said that children's development can be badly affected when they are denied enough access to both parents to build proper relationships.

Family law is arguably the most complex legal field in the UAE, with expatriates being able to choose between the laws of their own country and UAE law. Reforms have been underway since 2005 and the focus has been on maintaining the family's integrity. But the principle, more often than not, is misconstrued and the focus shifts towards making it difficult for parents to get a divorce - especially if the husband files for a divorce - rather than on properly counselling the parents on what is best for the child or family.

Sharia law requires that two arbitrators try to keep the family together, but they often lack proper training. And their reports are often treated as binding by the judge. The interests of the child can get lost in this process, and the case may end up being determined by who has the better lawyer.

Providing specialist problem-solving training for judicial counsellors and judges could save a lot of families from disintegration. At Abu Dhabi Judicial Department, the approach has already proved effective but unfortunately it is not consistently implemented.

Judges and counsellors should look at disputes on a case-by-case basis and use family law as a way to ensure what is best for the child. The rule should be in favour of extensive visiting rights for most parents who do not have custody, unless the parent poses a threat to the child.

The overarching principle must be that children come first, and authorities must find a way for that principle to trickle down to lower courts through awareness campaigns and quality training.