Rights of motherhood
A parent's worst fear when divorcing a spouse is losing custody of a child. Reem Leila reports on a draft law that could extend the custody rights of mothers
One of the most difficult issues to resolve after a divorce is custody of the children. Custody disputes open a Pandora's box of questions: Is it in a child's best interest to live with his/her mother or father? Who should retain custody if one of the parents remarries? What is the child's preference?
In response to these issues, a new draft law that will be presented to the People's Assembly proposes to change Egypt's custody laws by increasing the period of time a child can remain with his/her mother and acknowledging the voice of the child in determining guardianship.
The draft law would amend Article 20 of Law 25, passed in 1929. Under the current law, a son remains with his mother until the age of 10 or, with a judge's order, until age 15, at which point custody is transferred to the father. A daughter remains with her mother until she is 12 years old. With a judge's order, she may be able to remain under her mother's care until she is married. However, when a mother remarries, custody may be awarded to another family member, namely -- and in the following order -- the maternal grandmother, maternal sister, paternal grandmother or paternal sister.
If the draft law is passed, children of divorced parents would remain in their mother's custody until age 15. The draft law was approved last week by the Islamic Research Complex (IRC) as a prerequisite for being presented to the People's Assembly. Abdel-Mo'ti Bayoumi, a member of the IRC and the People's Assembly, told Al- Ahram Weekly that the draft law was approved unanimously by the members of the IRC because it does not contradict the regulations of Islamic Shari'a (jurisprudence). "Rather, the new draft law takes into consideration the child's welfare," says Bayoumi.
In Egypt, legal responses to custody disputes are found in Islamic Shari'a. According to the Hanafi school of Islam, which has been adopted in Egypt, a child should remain in his/her mother's custody as long as he or she needs someone to provide for basic needs. "This custody period ends whenever the child can be independent, regardless of a specific age. However, in the modern world, it is recognised that children need their mothers not only for physical but also for psychological care," said Bayoumi. Bayoumi also said that the IRC believes that this care "can only be achieved if the child stays with the mother for the longest period possible. The age suggested by the draft law achieves these needs."
Dalia, a 37-year-old mother, is battling with her 39-year-old husband at the Zananiri Court for the custody of her two children, Mohamed, aged 12, and Noha, aged 14. "Since our divorce, [my husband] has refused to pay alimony for the children. I have been the one paying for everything, from school fees to food and clothes. Now, he wants to take my son from me. On what grounds?"
Dalia fears that her husband may be an irresponsible parent. "This is totally unfair," she told the Weekly in reference to the current law. She thinks a change in the law would be "perfect". "I just hope that it happens as soon as possible so that I do not have to expose my children to more trouble."
Zeinab Radwan, Dean of the Faculty of Dar Al-Olum at Cairo University's Al-Fayoum branch and a member of the People's Assembly, is the initiator of the drive to amend Article 20. "Children have two rights: to receive love and have a proper upbringing. Both of these rights are equally important. The new draft law extends the period of time the child remains in the mother's custody because it acknowledges that children's needs today are very different than they were in the past. At the age of 10 or 12 years, a child is still too young [to be taken from his/her mother]. They have not even finished their primary education. At the age of 15, however, they are more grown up and have finished their elementary education," argues Radwan.
According to the draft law, rather than automatically transferring custody to the father at the age of 15, as is done under the current legislation, children would first be questioned by a judge about their preference. "At that age, a child will be able to choose whom he or she prefers to live with," said Radwan.
The current law stipulates that the father is financially responsible for caring for the child. For a daughter, this care extends until she is married. For a healthy son, the father's financial onus lasts until he reaches age 21. In cases of disabled children of either gender, responsibility remains permanently with the father.
"If the law is passed, it would be a great victory for women and children," said Maram Ahmed, a divorcee with a 10-year-old son. "In most of the custody cases I am familiar with, children prefer to stay with their mothers because they are closer to her and the surroundings in which they were brought up. Suddenly removing the child from this setting is very cruel," she said.
Kamelia Abdel-Fattah, professor of psychology at Ain Shams University, says that removing children from familiar surroundings can cause psychological problems. "The best solution is to avoid this kind of situation," she said.
According to the latest statistics conducted by the Cairo Personal Status Courts, out of a total of 58,781 divorces filed between January 2001 and January 2002, 8,182 were among newly- weds. According to personal status lawyer Abdel-Hady Ghozzi, in 87 per cent of the divorces, parents also file custody cases. "The people who suffer most from the current custody laws are the mothers and the children," said Ghozzi. "Most of the time, the fathers do not really care about their children but are filing custody cases merely as a way of getting back at the mothers. The new draft law, if passed, will solve many problems."
