Over the course of numerous years and after rigorous and continuous efforts, the Center for Women’s Legal Research, Counselling and Protection (CWLRCP) has succeeded in obtaining the approval and endorsement of the High Judicial Shari’a Council in Gaza on their Legal Memo titled “Yes, my mother is divorced and I want to stay in her custody until I am 18 years old”. The brief was filed to the High Judicial Council and the Palestinian Legislative Council to support divorced and separated mothers in attaining child custody until the child reaches the age of 18 years, thus ensuring the child’s best interests. This came after CWLRCP’s success in granting widowed mothers child custody without age restrictions through a campaign carried out in 2009.
In March 2020, CWLRCP started implementing the “Women Forward Forum” project, funded by Heinrich Böll Foundation - Palestine and Jordan. As part of the project’s activities, the center carried out a campaign to raise the age of child custody for divorced mothers through a series of media activities and meetings with women and human rights organizations and lawyers. The last one of these meetings was held via Zoom in June 2020, during which all participants emphasized the importance of raising the age of child custody, both boys and girls, for divorced mothers to 15 years and to allow judges to extend it to 18 years. This is similar to Article 173 of the 2010 Jordanian Personal Status Law: “child custody is granted to the mother until the child is 15 years old, and to non-mothers until the child is 10 years old. Children have the right to choose to remain in their mothers’ custody until they reach puberty after reaching the determined age.”
In a similar light, CWLRCP started working with the Legislative Council as the sole legislator and held several meetings with the council’s members to present and discuss the Legal Memo. These meetings aimed to pressure them to speed up the process of adopting laws to raise the age of child custody for divorced mothers. Additionally, many phone calls and correspondences were made with them, through which they confirmed their interest in raising the age of child custody and promised its adoption by the end of the year.
Zainab Ghonaimy, Director of CWLRCP, emphasized the importance of what has been achieved in terms of approval and endorsement for raising the age of child custody, particularly that this issue, similar to all matters relating to family issues, are clearly based on gender discrimination. These laws came about through a historical, economic and social context for decades, and under the framework of a patriarchal context in which women, due to their gender, were seen as subordinates and followers to men. Furthermore and in relation to their role as custodians, women are perceived as servants and providers for children until they reach the age at which they can care for themselves. This, in turn, has resulted in placing their rights in an inferior level in comparison to those of men. The inherited Personal Status Laws in Palestine regulating the issue of child custody in the Gaza Strip are different from the prevailing laws in the West Bank.
Article (118) of the Family Rights Law states that the custody of children is as follows: “The judge may grant women the right to custody until the male child is seven years of age and females nine years of age, but this period could extend to nine and eleven years of age respectively, if it is in the children’s interest.” This law is based on what is stated in the Personal Status Law, where Article (391) states: “The custody period ends when the boy no longer requires the service of women when he reaches the age of 7, and the custody period for a girl ends when she reaches nine years old, and the father has the right to take them from the custodian at that point… etc.”
As for the Jordanian Personal Status Act for the year 1976, it has differentiated the custody period between mother and non-mother custodians, whereby Article (161) states: “The custody period for women who are not the mothers ends when the boy reaches the age of 9 and the girl reaches the age of 11.” Article (162) of the same law states that “custody is granted to a mother until her children reach the age of pubescence,” but this age is not specified in the law. However, based on the definition stated in the Personal Status Law, Article (495) states that “the minor male reaches puberty when he is sexually mature and is able to ejaculate and impregnate, while the minor female reaches puberty through menstruation, pregnancy and sexual maturity. If these signs do not appear, children are considered to have reached puberty at the age of 15.”
The legal memo that was filed to the component authorities in the Shari’a Judiciary and the Legislative Council in Gaza demanded that the following be taken into consideration with regards to the current Personal Status Laws:
Both laws in the Gaza Strip and the West Bank that regulate issues related to custody when marriages end are based on clear discrimination against women, as follows:
- A mother’s job is considered a service in which she is a servant to the child “until the child can do without the services provided by women,” and it is on this basis that the law determined the maximum age of custody.
- Lack of consideration to the parental and pedagogical role of the mother and her ability to raise her children.
- Failure to take into consideration the best interest of the child in being under the care of the custodian throughout his/her childhood and until they reach the legal age of pubescence or the age of 15 as stated in the Personal Status Law.
- The discrepancy in determining the custody age for a divorced mother who did not remarry. The Family Rights Law specified child custody age (9 years for boys 11 for girls), while the Jordanian law based the custody age upon the child reaching puberty without specifying the exact age.
- The current laws do not address the value of Nafaqa (alimony) and residence of a child. This leaves room for the judge’s discretionary power in terms of assessing the economic situation of the father, which, in turn, constitutes a violation of the right of children in custody, and further allows the exploitation of children in the deisputes between divorced parents.
- The Personal Status Law implemented in the Gaza Strip is based on the doctrine of Imam Abu Hanifa (Articles 380-394) regarding the right to custody and its sequence in the Shari’a courts. This is due to the absence of these rights within the Family Rights Law, whereby, in the event of the mother remarrying, custody is transferred to the grandmother (from the mother’s side) and then to the grandmother (from the father’s side), then to the aunts and sisters of the child etc…
- Discrimination against women is clear in the law with regards to not granting the mother guardianship over her children during custody, regardless of whether the marriage had ended or not during the custody period. Hence, this leads to her inability to obtain a passport for the child or being able to have the child travel with her, even in exceptional cases whereby it is necessary, without the permission of the father or that of other legal guardians such as the grandfather or uncle (in the absence of the father).
- On the practical level, discrimination against women in our society goes beyond the law, as is the case when child custody is taken away from mothers while children are still within the age of custody determined by the law. It is commonplace that mothers are pressured to give up custody to the fathers in a clear violation of the child’s right to be placed under women’s care as stipulated by the law.
❖ Recommendations and proposals regarding the custody of children:
First: Custody Rights
1) When a marriage ends in divorce, the custody of the child is granted to the mother and then to the father.
2) Custody of boys and girls extends until they reach the age of legal capacity (18 years old), whether the custodian is the mother or the father.
3) Priority in child custody is granted to the mother, unless the mother is unable to do so for stated reasons, in which case the custody is transferred to the father.
4) Child custody for non-parents:
- If neither one of the parents is the custodian, the judge chooses who he deems fit from the child’s family to be the custodian.
- If the relative declines custody, he/she is not forced to do so.
- The person who has been granted custody of the child may waive his/her right to custody and the judge determines another custodian based on the child’s best interest.
5) The marriage of the custodian does not impact his/her right to custody unless the judge decides otherwise in the child’s best interest.
6) Neither parent custodians can travel abroad with the child without the non-custodial parent’s approval, unless the judge rules otherwise based on the child’s best interest.
Second: Residence and Nafaqa (Alimony Rights)
- The custodial mother has the right to an independent residence with her child.
- Nafaqa (alimony):
- The child’s nafaqa is expended from his/her own money if available. If not, the parents are responsible for financial support.
- The court decides the share of each parent for the child’s nafaqa depending on their individual financial capacity. The role of the custodian is considered part of the maintenance (nafaqa).
- The financially capable party is required to pay the child’s nafaqa in case the other party is unable to do so, on the condition of repayment at a later stage.
- The state is responsible for the child’s nafaqa if both parents are unable to, on the condition of repayment at a later stage.
Third: Visitations
1) Children under the care of a custodian have the right to be hosted by non-custodial parent on a regular basis.
2) The judge has a discretionary power to extend the hosting period up to 24 consecutive hours or more, based on the best interest of the child.
3) The judge decides on who has the right to visit or host the child from the relatives if the child is not under his parents’ custody.
Fourth: The Alternative Proposal Regarding the Age of Custody
With emphasis on all the above-mentioned regarding Clause 2:
(2) The age of custody over girls and boys is granted until they reach 15 years of age, whether the custodian is the mother or the father. After that, children are given the choice to decide which parent they wish to live with.
❖ The rationale behind the amendments:
1) These amendments originated from an understanding of the substantive changes pertaining to the level of women’s development on all fronts. On the one hand and most importantly, they are based on the legal recognition at the international level in accordance with all conventions relating to human rights. On the other hand, the national laws and legislations that were adopted under the Palestinian National Authority that consider women a primary partner in the development of the family and society. This necessitates legal change that allows the achievement of social justice and equality.
2) The best interest of the child is to be under the custody and guardianship of the mother as she is seen as the most fit. The child’s best interest lies in the mother’s guardianship and custody followed by the father and for both parents to jointly provide care for the child.
3) If a man divorces his wife, it is not morally acceptable that he take her son/daughter away from her and separate them from each other.
4) Parenting is not only the service provision of food, shelter and hygiene for the child as is mistakenly seen by some proponents of reducing the age of custody for women. These opinions and ideas culminated in times when the status of women was different from what it is today. Women today are educated, productive and able to manage their affairs as well as their children’s.
5) Consolidate the custody age of girls and boys until they are 18 years old, the age of legal capacity. The current laws clearly differentiate based on the gender of the child, which works against the interest of the entire family as it separates siblings from each other, leading to a negative impact on their mental health. Furthermore, the best interest of the child is fulfilled when he/she is placed under the uninterrupted custody of his/her mother until he/she reaches maturity, unless the mother is unable to, in which case the best interest of the child is to be in the custody of the father.
6) Protecting the right of a divorced mother who devotes herself to nurturing and caring for her children, as she is the one who does not remarry and sacrifices her personal enjoyment for the sake of her children. Meanwhile, in most cases men remarry and build new families, whereby the new wives might be negligent or unkind to the children. It is with all this in mind that the custody of the child should be granted to the mother.
7) To protect the interest of the child, visitation and hosting are necessary in order for both parents to jointly care for their children despite the end of their marriage. The hosting of the child should be implemented in a proper and legal manner that takes into consideration the best interest of the child in accordance with the judge’s ruling.
8) Problems arising from the current laws relating to the Nafaqa clause forces mothers to give up custody due to their inability to support their children financially and cover housing expenses, which ultimately works against the child’s best interest.
9) To ensure the child’s best interest and to avoid disputes between parents over alimony, all expenses relating to the child are to be covered from the budget of a fund solely set up for this purpose “Nafaqa fund” in the event that both parents are unable to financially support the child. As for cases when the mother is financially capable, she should contribute along with the father in supporting the child as this is in the child’s best interest.