Child Custody in the Middle East
Custody comes into play during and after the divorce of a married couple with children. The rules of custody in the Middle East have been significantly influenced by religious influences, albeit by varying degrees of strength depending on the country. Custody, and by extension guardianship laws, can be found in a country's family code or family laws.
Types of Custody
There are two main components of custody: hadana and waliya. These two components are genderized. Hadana, which can be translated as 'care' is most often associated with the mother's duty. Wilaya, translated at 'supervision' is the duty of the father. The two are not placed on equal grounds.
Hadana is care allocated to the mother. It is associated with the care of raising a child such as feeding, clothing and bathing, that the child is too young to perform by themself. Boys often leave hadana care early, anywhere from the age of two to seven is most common. Girls can stay under the custody of the mother until puberty or until marriage, depending on the local culture. A mother can lose her rights to hadana if she remarries. Hadana is always given to a female relative. If the mother is unable, then it may pass to the maternal grandmother, the paternal grandfather, a sister, aunt or any other viable relative.
Waliya is the supervision or guardianship of the child, which is associated with the father.If the father is unable to take his responsibilities because of death or insanity, then waliya almost always passes to another male relative on the patrilineal side. Waliya often encompasses the child's access to citizen rights such as a passport or enrollment in school.
Under the family code of 1984, a woman has custody of a son until he reaches the age of 16 and a daughter until she turns 18 or marries, whichever happens first. She is allowed to become guardian of her children if the father dies.
Despite the code, Algeria's Constitution, passed in 1989, legally allows inequality between the genders.
The Muslim peronal status law of 1920 granted women custody of sons until the age of seven and daughters until they turned nine. If circumstances revealed that it was in a child's best interest, a judge could order an extension, allowing sons to remain with the mother until nine and daughters until eleven.
Under the Pahlavi dynasty, guardianship was always granted to the father, but custody was granted to the parent that was best suited to care for the child. Women had a greater chance of obtaining custody during this time.
Things changed after the Islamic Revolution. The family code took it's roots in shari'a law. As a result men were given custody of boys when they turned two and girls when they turned seven.
As of 2003 the law relaxed a bit, allowing women to keep custody of sons until the age of seven.
Custody laws are found in the Jordanian Civil Code. Article 155 of the code describes the characteristics a mother must have in order to obtain custody, which include: trustworthiness, ability to perform her duties of taking care of her children and she mustn't remarry. Article 161 of the code states that, a woman has the right to custody of sons until the age of nine and girls until the age of eleven. Her remarriage, results in forfeiture of any custody rights according to article 156. In addition, the waliy (guardian) must approve of any travel for her children outside of the country.
The Kuwaiti personal status law contains the laws dealing with custody. It is siginficant in that its interpretation of Islamic law deviates from traditional norms. Custody is granted to the parent that that judge deems is most suitable for the children. If a woman is granted custody she keeps sons until the age of 15 and daughters until they marry. Her divorced husband is responsible for maintenance payments of any children in her custody. All rights to custody end if a woman remarries.
Muslim women are allowed custody until their son reaches the age of seven and girls reach the age of nine unless they remarry, at which time they lose custody immediately. Men never lose custody if they remarry, and the children belong to his patrilineal line.
Palestinian Arab Women in Israel
Women are allowed custody for sons until the age of seven and daughters until the age of nine. Under shari'a interpretation, women aren't naturally accepted to the responsibilities of custody. Sometimes women may experience pressure from the husband's side of the family. For example: if she wants a divorce, it could be bartered for, and in return she would give up any custody rights to her children.
Women have custody of sons until the age of five and daughters until the age of seven.
1981 mothers given rights to both custody and guardianship in the event of the father's death. In 1993 mothers were given guardianship if they could prove the father unworthy. This reform challenges traditional patrilineal understandings.
- Mir-Hosseini, Ziba. “Paternity, Patriarchy and Matrifocality in the Shari’a and in Social Practice: The Cases of Morocco and Iran.” Cambridge Anthropology, 1992/1993
- "Hadana." In The Oxford Dictionary of Islam. Ed. John L. Esposito. Oxford Islamic Studies Online. 27-Jun-2010. <http://www.oxfordislamicstudies.com/article/opr/t125/e756>.
- Joseph, Suad. "Gender and Citizenship in the Middle East." Syracuse University Press: New York, 2000.
- Oslanoo, Arzoo. The Politics of Women’s Rights in Iran. Princeton University Press: Oxford, 2009