Sharia applies to non-Muslims only if both parties agree
A district court in the United States will not recognise any child-custody law order in Dubai in the Caroline Peters case because custody and divorce law in the UAE "is in violation of well recognised norms of human rights", a judge there has ruled.
Judge John Gassaway wrote in a May 7 order that the UAE's child- custody laws operated under Sharia and were based "on considerations other than the best interests of the child".
UAE lawyers insist Sharia would be applied to non-Muslims in divorce and child-custody cases only if both parties agreed not to choose civil law or their home country's laws instead.
Yousef Al Bahar, a lawyer with Al Bahar and Advocates in Dubai, said the child's welfare was the primary consideration in custody cases.
"The court studies both parties," he said. "They consider the rights of the child. That is the most important."
Judge Gassaway also asserts in his order that the UAE grants the father of the child automatic rights as guardian, a claim refuted by Ali Al Jarman, managing partner at Prestige Advocates.
Under Sharia, if both parents are non-Muslim, fit parents and not criminals, custody of girls younger than 13 and boys younger than 11 usually goes to the mother, although she may lose it if she remarries.
If a father is granted custody, Mr Al Jarman said, a female relative must help to raise the child.
Because the UAE is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction, local laws apply to child-custody cases and a foreign court order is not enforceable here.
Parental child kidnapping cases have become more common in recent years, as parents attempt to exploit local laws to protect them from foreign orders.
However, the US state department reported four new cases of child abduction to the UAE last year, involving five children, compared with five cases and seven children in 2010.
* Jen Thomas and Awad Mustafa
