“Difference of nationality” between spouses raises cross-border custody disputes

Fathers residing in the country faced legal disputes related to the custody of their children, after they traveled outside the country with their mothers. They were surprised by divorce and alimony lawsuits, and a refusal to return the children to the country.

These conflicts mainly occur between spouses of different nationalities, when one party decides to separate from the other party and wants to leave the country permanently, as each of them disputes over taking their children with them to their country. Couples said that they fell into deception and misleading operations after their children traveled from the country to move to the country of one of the parents and settle there, without their consent.

A legal advisor confirmed that the issue of custody provisions in the event of a difference in nationality and place of residence of the parents raises many legal references, because it relates to conflicts of laws and rules of international jurisdiction, while the new Personal Status Law specifies four conditions for the child in custody to travel outside the country, including that the custodian of the parents may travel with the child in custody outside the country with the written approval of the other party, or the guardian in the event of the death of the father. The total number of divorce cases among expatriates in the Ministry of Justice’s electronic marriage system, at the level of the federal courts in Sharjah, Ajman, Umm Al Quwain and Fujairah, reached 171 cases last year.

In detail, a reader said in a letter to “Emirates Today” that he resides in Dubai and his wife holds a different nationality from his, and he was sending a monthly allowance to her and the children, but he was surprised that she had filed a lawsuit against him asking for an increase in alimony, adding that he wanted to divorce her through the courts of his country, and commit to the alimony decided by the court, wondering how to take his children currently residing with her in her country into his custody.

In another case, an Arab father filed a lawsuit before the court requesting that the mother’s custody of the children be dropped and that they be included with him, given the mother’s residence in a country where it would be difficult for the father to carry out his duties as their natural guardian. He said that his wife left on a family visit to another country, and refused to return to the marital residence in the Emirates, taking the other country as her permanent place of residence. He continued that she filed a lawsuit in the new country for divorce due to harm, while the mother of the children appeared and reported that the father had deceived her when he went to visit her in the country in which she resided, and asked her to take the children for three days to the state on the condition that he would return them to her, but she was surprised by a message from him when he arrived at the airport with the children, telling her that he would not return the children, and that she had to come to the state to see them, noting that she had a custody ruling for the children from the country that I obtained a divorce ruling from him due to harm.

In a similar case, a father filed a lawsuit before the court against his ex-wife, seeking to lose her custody of his daughter, and to include her with him to travel and settle in his country, claiming that the defendant is embracing the daughter, and that he has finished his work in the country, canceled his residency, and intends to stay in his country. In the merits of its ruling, the Federal Supreme Court confirmed that revoking the mother’s custody simply because the father moves to a country other than the country in which the custodian resides is not permissible. It also confirmed that it is not permissible to revoke the custody of a divorced mother simply because the father moves to a country other than the country in which the custodian resides, unless the father’s move is for the purpose of settling down and does not cause harm to the mother, and the distance between the two countries prevents him from seeing the child in custody and returning on the same day by regular or modern means of transportation, which is what must be done in the Maliki and Hanafi schools of thought.

Accordingly, the court ruled that the divorced mother was entitled to custody of her daughter, despite the father’s stay in another country. The new Personal Status Law specifies four conditions for the child in custody to travel outside the country. It first states that the custodial parent may travel with the child in custody outside the country with the written approval of the other parent or guardian in the event of the father’s death.

Secondly, the court may authorize the custodian of one of the parents to travel with the child in custody for a period or periods that do not exceed a total of 60 days per year with a guarantee acceptable to the court that guarantees the return of the child in custody. The calculation of the year begins from the first permission, and the court may exceed this period if the travel is for the benefit of the child in custody, for treatment, or for a necessity that it determines after hearing the statements of the other parent, or the guardian in the event of the father’s death, unless it is not possible to attend.

Thirdly, the non-parent custodian may travel with the child in custody outside the country with the written consent of the parents, or one of them in the event of the death of the other, or the guardian in the event of the death of the father or both of them.

Fourthly, the court may permit the non-parent custodian to travel with the child in custody for a period or periods that do not exceed a total of 60 days per year with a guarantee accepted by the court that guarantees the return of the child in custody, and the calculation of the year begins from the first permission. The court may exceed this period if the travel is for the benefit of the child or for treatment or for a necessity that it determines after hearing the statements of the parents or one of them in the event of the death of the other or the guardian in the event of death. The father, or their death, unless they are unable to appear before her.

For his part, the legal advisor, Dr. Youssef Al-Sharif, confirmed that custody of children in all laws is linked to their interests and their place of academic, psychological and social stability. The mother’s flight with the children in custody to her country without the father’s consent can be considered evidence of her failure to take into account their interests and their stability in the UAE, as well as preventing him from caring for them, raising them, and exercising his guardianship over them, which is what the court can take into consideration when deciding on the issue of custody and interest of the children, provided that there is a woman in charge of caring for and raising them in the father’s place of residence.

Al-Sharif stressed that the issue of divorce, custody, and alimony provisions in the event of different nationalities of the parents and their place of residence raises many legal references, because it is related to the conflict of laws and rules of international jurisdiction. He pointed out that there are several raised cases in which the father resides in the UAE, and the mother is of another nationality, transfers her residence with the children to her home country, and desires a divorce, custody of the children, and alimony from the state courts. He stated that all courts, whether in the country of the father or mother, or in the Emirates in the event that one of the spouses resides there, are competent without preference between them, that is, if any lawsuit is filed before any of these courts, it is competent. However, it is worth noting that it is good sense to choose the court in whose jurisdiction it is easy to implement the rulings. A custody lawsuit on the part of the father facilitates the implementation of its ruling with the court in whose jurisdiction the mother resides for the custodial children. As for the lawsuit for divorce, custody, and alimony, which It is established by the wife or mother, so it is easy to implement its ruling in the court in which the husband or father resides.

As for the applicable law, it is essentially the law of the state in whose courts the lawsuit is brought, because this is linked to the sovereignty of the state and its laws over its lands and before its courts, noting that some countries deviate from the original within a narrow scope for certain considerations, including what the laws of some countries allow for parties in personal status matters to request the application of their personal law, and Emirati law is among these laws. Accordingly, if a lawsuit is filed before the Emirati judiciary, each party may request the application of his personal law, meaning that the husband requests the application of the law of his country and the wife requests the application of the law of her country, with the obligation to submit an approved and certified copy of the law to be applied. If the husband requests the application of his law and submits an approved and certified copy of it, the court applies it, and if the wife requests the application of her law and submits it, the court applies it. However, if each of them requests the application of his law, the court applies the law of its state (the state in which the court is located), as it is the origin, in accordance with the principle of the supremacy of the state’s laws over its territory.

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Passport

The Personal Status Law gives the guardian the right to keep the custodian’s passport, except in the case of travel, in which case it is handed over to the custodian. The court may order the passport to remain in the custodian’s hands if it sees intransigence on the part of the guardian in handing it over to the custodian in times of need. The custodian also has the right to keep the original birth certificate, the identity card of the child in custody, and any other supporting documents related to the child in custody, or a certified copy thereof. It also stipulates that everyone who has reached the age of 18 AD without any objection to eligibility, whether male or female, must keep his passport and any other identification documents, unless the court decides otherwise.

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Identification papers

The law stipulates that the custodian must keep the identity documents of the child in custody, provided that he does not use them for travel without permission from the guardian or the court, and that he does not use them in a way that harms the guardian, conflicts with his guardianship, violates the interests of the child, or benefits from them unjustly.

In the event of a violation, the guardian may request identification documents. It will not be handed over to the custodian after that except with the permission of the court, and as required by the interests of the child in custody.

The father bears the expenses of obtaining and renewing identification papers.