Under the UAE personal status laws, a custodian and a guardian are two different concepts. A custodian is an individual who takes care of the child on a day-to-day basis and has physical custody of the child. The mother is considered to be a natural guardian of the child till the daughter turns 13 and the son turns 11, unless the mother is unfit to take care of the children. The father will have the right to claim custody only after the children cross the age thresholds.
On the other hand, a guardian is an individual who is responsible for providing financial support, taking care of education, travel and general bringing up of the children. Under the UAE personal status laws, the father is usually the guardian of the children.
Mutual Agreement on Custody of the Children
The parents can also enter into a mutual agreement regarding custody arrangements for the children, which could set out the rights and obligations of each parent. The parties, with the help of their legal counsel, can draft and finalize such an agreement.
In particular, the agreement could record who the custodian of the children is, the visitation rights of the parents, including any overnight stays, visits for special occasions like Eid, Christmas, birthdays, etc., financial obligations of each party related to the expenses of the children, travel of the child within and outside the country including any requirement of consent, permanent relocation of the child, amongst others.
The best interest of the child has to be the core consideration while drafting and finalizing this agreement.
How to Make Custody Agreement Binding in the UAE?
In order for the parents to make the custody agreement binding, it is ideal for the parties to get it executed before the Family Guidance Department of the Family Courts. The Family Guidance Department is a special department in the UAE family courts, located within the premises of the family courts. This department is responsible for assisting in the execution of such agreements.
The broad process to be followed in executing the custody agreement before the Family Guidance Department is as follows.
A file will be opened before the Family Guidance Department. This is usually undertaken by the legal counsel of either of the parties. Certain documents will be required to be submitted along with the application to open the file.
Once the file has been opened, a hearing date will be set. If the parties have not finalized the agreement by the date of hearing, a later date will be issued. If the agreement has been finalized by the next date, it will be signed by the parties before the Family Guidance Department.
Having said the above, it is crucial to note that in order to make an application to execute a custody agreement in the UAE, at least one of the parties needs to be resident of the UAE.
One of the biggest advantages of executing the custody agreement before the Family Guidance Department is that in the event of a dispute or breach by a party, execution proceedings can be directly initiated by the non-breaching party based on the terms of the custody agreement.