Nursery, Guardian and Custodian

Herein under, we will define the Nursery, Guardian and Custodian and then we will show the most important legal rules governing the Nursery based on the Personal Status Law No. 28 of 2005. Finally, we will offer a judgment of the Cassation Court concerning the mother’s eligibility to have the children custody.

Children Custody is to save, educate and care the child that does not conflict with the right of the guardian in the guardianship on the self.

The nurse should have mind, puberty, honesty and the ability to raise, maintain, and safe the child of serious infectious diseases and shouldn’t have been convicted in a crime of the honor crimes.

In addition to the previous conditions, if the women is the nurse, then she should be free of husband foreign for the child unless the court decides otherwise. The religion of the nurse should also unite with the religion of the child otherwise her nursery shall lapsed unless the judge estimate otherwise for the interest of the child but her custody should not exceed to his completion of five years, whether the child is male or female.

The general rule is that the mother shall have the custody of her children when dispute upon the custody unless the judge decides otherwise.

The custody of women shall come to end when the male reaches eleven years old and the female reached thirteen years unless the court shall consider extending this age, until the male attain puberty and the female getting marries, for the interest of the child.

The Guardian of the self (often the father) shall retains the passport of the child except in the case of travel, he should give it to the nurse.

The Guardianship is divided into two sections:

The guardianship upon the self and guardianship upon the money.

The guardianship upon the self is taking care of everything that related to the minor and to supervise, maintain, take care, up bring, save, direct, guide and prepare the minor. This includes the approval to marry. The guardianship upon the self is up to the father, then the up to paternal kinsman by himself according to the order of inheritance.

The guardianship upon money is the care, save, manage and invest all items of the minor’s money.

The guardianship shall come to end when the minor becomes adult. The guardianship upon  money is be for the father alone then for his guardian, if any, then to the right grandfather, then to his guardian, if any, and then to the judge.

Guardianship: The father may choose to appoint a trustee upon his minor son. The guardianship must be displayed upon the court to fix it. If there was no chosen trustee or right grandfather for the minor, the court shall appoint a trustee.

The Rule issued in 2009, rights.

The Court of Cassation judgment, Dubai – On 03/11/2009, appeal No. 2009/59 personal status appeal

It is decided in the judgment of this court – as required by Article No. 142 of the Personal Status Federal Law No. 28 of 2005 and what have been reported in the explanatory memorandum to that law – that the nursery is keeping, upbringing and caring the child not contrary with the right of the self-guardian, and that the wise legislator has made the nursery in early childhood belongs the women’s affairs – because the child in this stage of his life needs to their care. As woman shall give him good and more care and that the mother in this first phase of childhood more mercy and be patient with her child and shall bear difficulties for the sake of his nursery. This means that the mother is most one who has the right to custody her young son even without a request by her, as this is common sense that Allah has created humankind upon thereof except she waived according to what will be mentioned below. The legislator has confirmed the above mentioned in Article 146/1 of the law referred to prove the right to custody of the child to his mother. Accordingly, the judgment of this court came in the light of this article- and upon what has mentioned in the explanatory memorandum to the law, originally, that the nursery is a right for the child upon his parents, but it is their obligation as long as the marriage is existing. If the parents have separated, the mother shall have the priority to take the nursery even from the father, so as long as she is fit and desire to take over the nursery, as this in the interest of the child and the best for him even if it goes contrary to the interests of the trustee of the self, with its requirements as the nursery is the inherent right to the mother – even without asking, as previously noted. This right shall be proved to the mother from the date of child birth, and up to the date scheduled for the end of the women’s validity in the nursery as decided by Article No. 156 of this law. Stipulating upon that the end of validity of women in nursery is when the male to reach eleven years and female thirteen years unless the Court considers extending this age – for the interests of the child until the male has attain puberty and the female getting marry – otherwise her custody shall be terminated for one of the reasons enumerated in Article No. 152 thereof by disruption of one of the conditions that were prescribed in the Articles No. 143 and 144 of the same law in the general custodian, which is insanity  or losing the honesty and ability to educate, maintain and care of the child, or being infected with one of the serious infectious diseases or issuing  a judgment against one of the honor crimes or if the women has married to a foreigner to the child and have sexual intercourse with her unless the court estimates otherwise for the interests of the child or for religion difference to consider the provisions of Article No. 145 of this law or for any other reason prescribed by law.

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