Custody Rights in the UAE
Family Business / UAE
Custody issues are sensitive and emotionally charged aspects of family law. For fathers and mothers alike, the question of how to maintain a meaningful and nurturing relationship with their children is paramount.
Law Update: Issue 376 – Transport & Insurance
Dipali MaldonadoPartner,Private Client Services
Shabana SaleemSenior Associate (Barrister),Private Client Services
Custody issues are sensitive and emotionally charged aspects of family law. For fathers and mothers alike, the question of how to maintain a meaningful and nurturing relationship with their children is paramount. Historically, custody has been awarded to mothers, particularly for young children. While UAE family law has traditionally favored mothers in custody decisions, recent legal changes offer new insights and possibilities for both parents.
Historically, the default custody arrangement in the UAE has been to award custody of young children to mothers. However, recent shifts in legislation, such as the Federal Decree-Law No. (41) of 2024, have clarified and refined the roles of both parents in custody and guardianship matters, with a particular focus on ensuring the best interests of the child.
We outline the legal landscape under applicable laws and practical strategies for securing access and safeguarding parental relationships post-divorce.
The newly issued Federal Decree-Law No. 41 of 2024 (the “New Personal Status Law”) brings clarity to custody matters across the UAE. It applies to Muslim UAE citizens, non-Muslim citizens who do not opt for personal religious laws, and non-citizens unless another legal framework is agreed upon. Importantly, the law applies retroactively to divorce proceedings but does not affect previously settled custody or access arrangements.
The law reaffirms that custody (Hadanah) belongs to the mother by default, particularly for young children, while guardianship (Wilayah)—including decisions related to education, medical care, and finances—remains the responsibility of the father. However, the new law also reflects an ongoing conversation about the evolving roles of both parents, acknowledging that the child’s best interests are paramount.
There is no assumption of joint custody in the federal law; instead, the court prioritises the child’s best interest when assigning custody and retains the authority to reassign it if circumstances warrant. This flexibility allows for legal responses tailored to each family’s needs.
In contrast, Abu Dhabi Law No. 14 of 2021 and Resolution No. 8 of 2022 introduced joint custody as a default in Abu Dhabi for both Muslim and non-Muslim residents. Further, Federal Decree-Law 41 of 2022 regulates family affairs of non-Muslims in the UAE. It is not clear whether the New Personal Status law is meant to repeal the previous laws, however, this is likely to be clarified through future jurisprudence.
For fathers, this means guardianship duties—ranging from financial support to making key decisions about the child’s well-being—are assigned to them, even though the day-to-day custody of the child typically remains with the mother. Parents must navigate a nuanced legal framework that aims to strike a balance between the parental duties to ensure the child’s overall well-being.
The New Personal Status Law clearly distinguishes between custody and guardianship under Articles 112 to 114 of Federal Law No. 41 of 2024 that states:
Custody (Hadanah) belongs to the mother by default.
Guardianship (Wilayah)—involving education, medical decisions, and finances—belongs to the father.
The child’s best interest remains paramount, and the court retains discretion to reassign custody if necessary.
This confirms that under federal law, there is no presumption of joint custody. The mother retains custodianship, and the father holds guardianship.
For fathers, this legal distinction means they are not necessarily excluded from important decisions in their children’s lives, even though the physical custody lies with the mother. On the other hand, mothers might feel the weight of primary caregiving but may benefit from the support of fathers in ensuring the child’s financial and educational needs are met.
Despite this, fathers do have the legal right to negotiate for meaningful access to their children, which can be arranged in several ways. It’s important for both parents to cooperate and develop an arrangement that works in the child’s best interest.
While the law assigns custody to the mother by default, fathers can take practical steps to ensure meaningful involvement in their children’s lives. First, fathers should negotiate access rights—either amicably through private settlement or, if necessary, through the courts. Similarly, as the law assigns guardianship to the father, the mother should negotiate specific, structured, and focused support on the child's best interest.
There are several approaches that are commonly used:
Gradual Access Model
This model starts with limited daytime visits and gradually increases over time. It is particularly beneficial in situations where trust needs to be rebuilt or where concerns exist about one parent's ability to care for the child. Fathers may appreciate this structured approach to re-establishing their relationship with their child, while mothers may feel reassured that the process is paced.
Flexible Access Arrangement
A more informal approach where parents agree on visitations based on mutual convenience and the child's needs. For fathers, this offers flexibility in their involvement, but it can be challenging if disagreements arise. Mothers may appreciate the adaptability but may also need clear communication to prevent misunderstandings.
Semi-Flexible Access
This model ensures a minimum number of hours per week for each parent while allowing for flexibility in scheduling. Fathers may find this model ideal, as it offers structure with room for adjustment, while mothers may find it more manageable if their schedules need to change occasionally.
Rigid Access Model
For families that require more structure, a fixed schedule with clear terms (e.g., specific days, school drop-offs, and overnight visits) can provide clarity and enforceability. This model is especially useful when trust between parents is low or when clear boundaries are necessary. It ensures that both fathers and mothers have equal access to their child’s routine, with less room for ambiguity.
While each model serves different family dynamics, it's crucial to consider what is best for the child. As family circumstances evolve, these arrangements can be revisited and adjusted accordingly. The communication style between parents significantly influences how adaptable or rigid these arrangements can be.
It is equally important for both parents to agree on how holidays, religious celebrations, and significant life events will be shared. Ensuring that both fathers and mothers have the opportunity to participate in these occasions is crucial for the child’s emotional well-being. A well-structured parenting plan that includes these special occasions can prevent future conflicts and ensure the child experiences meaningful moments with both parents.
While fathers have the right to seek modifications to custodial arrangements, this is typically only possible under certain circumstances. For example, if the mother is deemed unfit to care for the child due to mental illness, substance abuse, or prolonged absence, the father may petition the court for custody. Additionally, if a child over 12 expresses a clear preference to live with the father, the court may reconsider the custodial arrangement.
However, such claims must be supported by substantial evidence, as the court’s primary concern is always the child’s best interest. Mothers, too, should be mindful that they cannot waive the child’s right to maintenance or other legal entitlements, even if they agree to transfer custody.
Fathers and mothers are encouraged to seek amicable, child-focused solutions whenever possible. In the UAE, especially in Abu Dhabi, courts prioritize non-adversarial resolutions, such as mediation, over litigation. This approach allows parents to focus on the child’s needs rather than engage in prolonged, adversarial legal battles.
However, if one parent unreasonably denies access or acts in a way that harms the child’s welfare, either parent may need to resort to legal action. Fathers should ensure that their case is well-supported with factual evidence and guided by legal counsel, while mothers must also be prepared to protect their rights and the child’s best interests in similar situations.
In Abu Dhabi, joint custody remains the default unless contested under Law No. 14 of 2021. This is a notable difference from the rest of the UAE, where Federal Law No. 41 of 2024 governs and retains maternal custody as the default. Fathers and mothers should be aware of these regional variations when negotiating custody or access arrangements.
In the UAE, while the law traditionally favors maternal custody, there are significant steps fathers can take to remain involved in their children’s lives, particularly through guardianship rights and access arrangements. Mothers, too, play a vital role in shaping their children’s future while navigating legal frameworks that support their rights.
For both parents, the key lies in:
Negotiating meaningful access arrangements that serve the child’s best interests.
Fulfilling financial and emotional responsibilities as part of the co-parenting process.
Seeking mediation or legal recourse when necessary to ensure the child’s well-being is always the priority.
With careful consideration and a child-focused approach, both fathers and mothers can effectively navigate custody dynamics in the UAE.
For further information,please contact Dipali Maldonado andShabana Saleem.
Published in April 2025
