The UAE's Supreme Court has established that the interests of children come first in decisions regarding custody disputes between divorced parents. In practice, however, this overarching principle is not always applied.
Lower courts in particular appear to favour the father's right of custody, unless a mother can prove he is unfit. And if a divorced mother remarries, judges typically award custody to the father - a practice that is rooted in culture, and not necessarily in Sharia.
As The National reported yesterday, divorced mothers in the UAE often refrain from registering their subsequent marriages to avoid the risk of losing custody of their children from the first marriage.
The legal system does not require custody to be automatically awarded to a father if the mother remarries but, in practice, that is too frequently the case. This needs to change, and there are grounds to do so both in respect to Sharia and UAE civil law.
Each case must be taken on its own merit. In most cases where both parents are deemed fit and want custody, there should be a presumption in favour of the mother, given her role as caregiver - provided the father still has some access. Because custody for the father is almost the default position of the courts, the burden of proof is always on the mother.
There are at least two dangers in this tendency: first, it is often difficult to prove abuse, for example, in cases involving family members. Second, proving a father is not qualified to take care of a child implies a lengthy and costly legal process that mostly mothers would want to avoid.
Culturally, protecting and providing for a child has been the role of a father. But in today's world, where women can be breadwinners, that should not necessarily be the case. And financial support is not all a child needs. It is important for judges to consider the child's interests in terms of care, education and other contributing factors for a healthy environment. In many cases, mothers will be better able to offer these supports.
Of course, a child living with a stepfather is not always a healthy choice; in each case, judges must consider whether a step-parent would treat the child well. That, of course, should be a consideration when a father remarries as well. Mothers have always had a unique role - in today's society, they deserve the same rights as men in custody disputes.
