Child Custody

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Custody Battles

Hassan Elhais, Legal Consultant at Al Rowaad Advocates and Legal Consultants, Femina ME’s guest columnist continues with last month’s topic, that is, child abduction by a parent. Last month he spoke about the various preventive methods a couple may take to ensure that neither parent abducts the child and leaves UAE in case their marriage fails. The most effective methods are either to have agreement executed in the Court laying down the issues related to the child’s custody in case of various contingencies, or, getting a travel ban order on the child’s passport. In this month’s edition he covers the steps a parent may take if the child has already been abducted from UAE by the other parent.

In such a scenario, if the aggrieved party wishes to bring the child back to UAE he/she would need to file a custody case in UAE family courts. He or she should firstly make an application to the Family Guidance Center of the UAE courts stating that his/her child has been abducted by the other parent. If the Family Guidance Center fails to reach the other party it will issue a no objection certificate allowing the applicant to file a custody petition at the Family Court as per Article 6 of Federal Law no. 28 of 2005, referred to as the Personal Status Law. On receiving such a petition the family court would then communicate with the immigration department to check the last known status of the defendant. If the report from Immigration department confirms that the defendant is outside UAE the court would authorize the complainant to proceed with notification processes. The process of notification would vary depending on whether or not the location of the defendant is known.

If the place of residence and work place of the parent who has absconded with child (defendant) is not known the complainant can rely on Article 8(6) of Federal Law No. 11 of 1992, the Civil Procedures Code, for notification purposes. Article 8(6) allows the complainant to notify the case through a Hassan Elhais, Legal Consultant at Al Rowaad Advocates and Legal Consultants, Femina ME’s guest columnist continues with last month’s topic, that is, child abduction by a parent. Last month he spoke about the various preventive methods a couple may take to ensure that neither parent abducts the child and leaves UAE in case their marriage fails. The most effective methods are either to have agreement executed in the Court laying down the issues related to the child’s custody in case of various contingencies, or, getting a travel ban order on the child’s passport. In this month’s edition he covers the steps a parent may take if the child has already been abducted from UAE by the other parent daily newspaper issued in Arabic, and in English if the defendant does not speak Arabic. This process would need to be done twice. In case the location of the defendant in a foreign country is known provisions of Article 9(7) of the Civil Procedures Law for notification purposes would apply. As per Article 9(7), the notification shall be delivered through diplomatic ways through the ministry of justice.

After notification requirements are complied with the court will proceed to issue the judgment in absentia if the defendant did not attend the hearing. It needs to be noted that after notification the judge may exercise his discretionary powers and request for witnesses to be produced.

Pursuant to obtaining the custody case judgment the complainant would then have the right to file a criminal case against the other party for child abduction or kidnapping as per Article 329 of Federal Law No. 3 of 1987 (the Penal Code). Once a judgment is issued by the criminal court the complainant can apply for Interpol Red notice on the child’s passport for international extradition of the child.

As the above mentioned processes are time consuming and complicated it is highly recommended that expert legal services be taken as even the slightest error could result in the entire process being jeopardized. Additionally, it is also advisable to simultaneously file a case in the home country of the parent who has absconded with the child as per advice from a family lawyer.

To conclude, it is always advisable for all couples from different nationalities to enter into a formal agreement regarding the child to avoid difficulties later on. However, in case such arrangements were not put in place the aggrieved parent can use UAE laws for bringing the child back to UAE.

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