Monday,27 May, 2019
Current issue | Issue 1341, (20 - 26 April 2017)
Monday,27 May, 2019
Issue 1341, (20 - 26 April 2017)

Ahram Weekly

The dilemma of child custody

With divorce rates on the rise in Egypt, will new draft laws on child custody and visitation be less fair to children and their mothers, asks Rasha Gedda

Child custody
Child custody

“I got married twice and got divorced twice, meaning that I have lived through divorce and child custody twice,” says 37-year-old Fatma.

Fatma’s first marriage broke up after she gave birth to a child with brain damage that resulted in her son’s disability. Fatma decided to file for divorce and then alimony when her former husband refused to meet his financial and parental responsibilities towards their son. However, even after obtaining a divorce, Fatma had difficulty obliging the father to pay for the expenses of her child through legal means.

“I had to bear all the expenses of my son’s treatment until he turned six years old,” Fatma said. “Then I decided to get married again.”

Fatma’s second marriage did not prove much better as it ended three years later when her “nervous and violent” husband abused her. Fatma now has to bear the expenses of her eight-year-old child from her second husband. Obtaining alimony the legal way was not helpful, as the child’s father had presented papers claiming that he could not afford more than LE400 a month in alimony and was unable to cover his child’s school tuition. The court ruled in his favour.

“I have to cover 80 per cent of my child’s school tuition fees, not to mention our daily expenses as the alimony hardly feeds the cats,” Fatma grumbled. “My second ex-husband has married again, but when I considered remarrying as well he threatened to file for the legal custody of our son. Under the current law I would lose custody to my mother, but if the new draft law that is being debated in parliament is passed, my former husband will automatically obtain legal custody of my child, all despite the fact that he is now married to another woman. This is all very unfair.”

The debate over personal status laws in Egypt, including laws regarding child custody and visitation, seems endless. Ask any number of people their opinion on the current and suggested custody and visitation laws and you will hear many conflicting views on the issue. Possibly millions of children from broken marriages are suffering from the repercussions of defunct laws with loopholes that in the absence of proper application mechanisms can be used or abused by obstinate parents in their fight over child custody.

The chronic issue of child custody and visitation rights has once again been in the limelight recently, with bills being presented to parliament and public discussion on amending the current laws.

A first amendment was proposed last December by MP Soheir Al-Hadi and received the support of 60 other MPs. The bill immediately provoked public uproar, however, as it suggested a shift in a child’s custody to the father in case a divorced mother remarries. The suggested amendment came under the fire of feminists, women’s rights advocates and social media. The National Council for Women (NCW), a state body, hastened to label the proposed bill discriminatory against women.

Al-Hadi ultimately retracted her bill, but another was then proposed by the opposition Wafd Party, suggesting more or less the same thing and again triggering heated public debate. Whereas the consensus among mothers, feminists and rights activists was that the new bill was also “patriarchal” in character, some legislators insisted that it contained amendments that had been needed for years.

Psychologists and religious experts stood in the middle, insisting that the current or amended laws should be flexible in a way that best served the interests of the child.

The new bill has yet to be discussed in parliament after Al-Azhar has its say on its articles. But the country’s personal status laws, particularly those pertaining to issues of child custody and visitation, have also been met by criticisms by those who say that economic and political issues are more pressing.

Michel Raouf, a lawyer at the Al-Nadeem Centre for the Rehabilitation of the Victims of Violence, a non-governmental organisation (NGO), suggests that the high rates of divorce in Egypt have probably been the reason why the new laws are being proposed to amend matters of child custody and visitation.

Recent data by the cabinet-affiliated Information and Decision-Support Centre (IDSCC) show that divorce rates have risen from seven to 40 per cent of all marriages in Egypt over the past 50 years. The IDSCC warned that Egypt now tops countries suffering from high rates of divorce, currently having about three million cases.

The same report also reveals that the country’s family courts now hear about one million cases of divorce every year and that 240 cases of divorce take place every day, or 10 per hour. In 2015 alone, cases of divorce in Egypt, including khul cases (a woman’s right to divorce her husband in return for foregoing her rights), hit 250,000, an increase of 89,000 on the figures for 2014.

Another report issued last July by the Central Agency for Public Mobilisation and Statistics (CAPMAS) similarly revealed that divorce rates had increased in Egypt in 2015 by 10.8 per cent, with almost 200,000 divorces compared to around 180,000 the previous year.

NEW LEGISLATION: However, women’s rights advocates say that the current high rates of divorce may not be the only reason why the country’s personal status laws are back in the limelight.

Azza Kamel, founder and director of Appropriate Communication Techniques (ACT), an NGO, would rather put it this way: “the reason why parliament and society as a whole are discussing personal status issues is that there is a desire to deprive women of their rights.”

“We are still decades behind when it comes to women’s rights,” she said. “There has been a trend in society to curtail women’s rights recently, and recent parliamentary discussions of such issues as women’s virginity and female genital mutilation [FGM] are also cases of the same anti-women mentality.”

“There was also public uproar over the appointment of a woman as governor of Beheira, and this again shows that our society is becoming increasingly patriarchal,” Kamel told Al-Ahram Weekly. “There has been a clear and systematic assault on women’s rights, and the suggested amendments to the current personal status laws should be seen in that context.”

Egypt’s personal status laws, which regulate issues relating to the family, notably marriage, divorce and child custody, have been subject to more than 20 amendments over recent decades, during which feminists have been battling for women’s rights in a journey that started in 1985 and continued until around 2005.

In 1985, a divorced mother could retain custody of her children until the boys turned seven and the girls turned nine. Advocates of women’s rights battled to expand the mother’s custody period gradually over the years until it reached 10 years for boys and 12 for girls.

However, it was only in 2005 that women seemed to win their long battle for child custody when the law was again amended to allow the children of divorced parents to remain in their mother’s custody until the age of 15, after which they would be given the right to choose if they wanted to remain with their mothers.

This, however, was conditional on the divorced mother not marrying again. The legislators argued at the time that this condition was necessary to protect the children against potential abuse by their mother’s new spouse. As a result, according to the current laws if a divorced woman remarries, legal custody of her children goes first to her mother, and then to her mother-in-law, followed by the aunts, and ultimately to the father.

According to a survey by the Association for the Development and Enhancement of Women (ADEW), an NGO, the majority of divorced mothers (more than 90 per cent of the sample surveyed) report that they have chosen not to remarry in order not to lose custody of their children.

But perhaps no divorced mother will now ever think of remarrying if the proposed draft laws are ultimately approved, since under the suggested amendments she will not only risk losing custody of her children but will also have to see her children raised by a stepmother. The suggested amendments would take child custody in Egypt back to the 1980s, and divorced mothers would not be allowed legal custody of their children beyond the age of nine if the draft laws are passed.

Even during that short custodial period if a divorced mother decides to remarry, her children’s custody would be automatically moved to their father on condition that he can provide a “female caretaker” for them, even if that caretaker is a stepmother. The new draft thus suggests that the father take priority of his children’s custody, rather than the chain going from the mother to her mother, then her former mother-in-law, followed by the child’s aunts and finally the father, which is the case under the current law if the mother remarries.

Perhaps for the first time in history the new draft also says that in cases where the father cannot provide a “female caretaker” custody would go straight to his brothers (the child’s uncles) and then to male relatives in the father’s family, with priority given to those also taking priority in inheritance.

Both the current law and the proposed amendments to visitation rights are equally controversial. Whereas the current law has loopholes that are sometimes abused by divorced mothers to deprive their former husbands from seeing their children, many fret that the proposed amendments may allow for further cases of fathers taking their children outside the country, effectively abducting them.

Article 20 of the current law grants the non-custodial parent (usually the father if the child is under 15) the right to see his child for three hours a week and in a public place or youth centre. The new amendments, however, propose visitation rights of no fewer than 24 hours and no more than 72 continuous hours per week, in addition to a week in the mid-year vacation and three weeks in the summer vacation. Feast days and other occasions would be split equally between the custodial and non-custodial parents.

The devil, however, is in the details. Article 99 of the proposed draft law also says that if the non-custodial parent is living abroad, he or she would be granted exceptional visitation rights outside the country of 10 days during the mid-year vacation and five weeks in the summer vacation. It imposes a sentence of three to 12 months in prison if the non-custodial parent refuses to bring the child back after the custodial period is over.

“The proposed draft is patriarchal, to say the least,” Kamel insisted. She argues that the new visitation articles “will legalise child abduction, especially since the law is already barely applied when the kidnapper is one of the parents. Such incidents of child abduction by a divorced parent, usually the father, already take place despite the fact that visitation takes place in a public venue and inside the country. Now we can expect more incidents of this sort in cases where a child is allowed to travel outside the country.”

The ADEW report found that nine per cent of the divorced women surveyed had reported that their children had already been kidnapped by their fathers. The survey also lamented the fact that although the law penalises the kidnapper, if he is a parent, the penalties are inadequate, ranging from a LE500 fine to a one year prison sentence, and they are also “rarely implemented”.

Kamel insists that the custody laws should give priority to the child’s interests, which, she says, means “children should remain with their mothers.”

“Mothers are the true guardians of the family. They cannot be replaced by fathers, and reducing child custody to the age of nine is a complete farce.”

Neither is splitting guardianship between the two divorced parents a good idea for Kamel, who insists that this would “further confuse the children as they would be raised in two different homes.” Raouf, however, argues that splitting custody is applied in many foreign countries and has proved to be a good idea. “The legislators should study these cases and adapt them to our culture, taking into consideration the professional opinion of experts in the field, particularly psychologists. All the laws should be designed in the interest of the child’s psychological well-being.”

Many legal experts, however, would agree with Mohamed Bahaa Abu Shoqqa, a lawyer, that the current laws are in need of amendment. “The new draft law has a new perspective on issues of visitation rights, considering that uncles could be a good alternative in custody cases and an important blood relation that cannot be ignored.”

DUAL ABUSE: Although the consensus among women’s rights advocates is that it would be discriminatory against women to deprive them of child custody upon remarriage, especially when the same does not apply to fathers, there is no doubting that the limited time currently allocated to non-custodial fathers, who are sometimes deprived of seeing their children altogether, is equally discriminatory.

The consensus is that the current law has many loopholes that, together with its poor application, can be abused by divorced parents looking for vengeance. According to the ADEW report, 90 per cent of the divorced women surveyed said that their former husbands had used the loopholes in the law to abandon their financial responsibilities to their children.

Declining to pay for the expenses of their children and threatening to take custody of the children they barely see are techniques that many men use to make the lives of their ex-wives harder. In the same vein, some women may equally abuse a father’s limited legal visitation rights and make it difficult for fathers to see their children.

Shaimaa Mohamed, a 30-something divorced mother of two boys, got married before she turned 20 to a man who was 17 years older than her at the time. She obtained a divorce after five years of marriage because her then husband and his mother treated her “badly”. Mohamed’s eldest son is now 14, and she says that her ex-husband has not fulfilled his financial obligations towards his sons.

“He would give me LE200 every now and then,” Mohamed said with a sigh. As a result, she had to work hard to provide for her sons and has not got remarried for fear of losing custody of them. But now that Mohamed is considering remarrying because she has found a “suitable father” for her sons, her ex-husband is threatening to file for the custody of her children if this takes place.  

“He threatened that he would not let me see my sons again, even though he is remarried himself and has not been seeing his sons,” she said. “How can legislators be so unfair to mothers? Haven’t they heard how notorious stepmothers can be?”

Kamel joins forces with Mohamed in arguing that mothers are the best placed to protect their children against abuse. “How could legislators think a mother is not capable of protecting her children against potential abuse by her new spouse, when we have seen many cases in which mothers have filed for divorce to protect their children against the abuse of their own fathers,” Kamel asked.

Yet, fathers are also suffering. Mohamed Amer, now in his mid-50s, cannot wait for the new draft law to be passed as then he will be able to see his children, now in their teens and brought up out of his sight. “I was married for eight years and had a girl and a boy,” Amer said. “But only a month after the birth of my son, my wife filed for a khul divorce, and even though I refused to divorce her for the sake of our two children she ultimately obtained it. Since then I’ve hardly seen my children at all since my ex-wife and my in-laws have made it difficult and have even nagged me during my few short visits.”

“I have filed many lawsuits, but the law is not enforced and there are many ways a mother can avoid its application,” Amer added.

Many believe that such a vicious circle of avenging parents cannot be easily broken by legislation alone, and that the laws should be flexible enough to give judges leeway in ruling on each case according to its merits and in the best interests of the child.

“The personal status laws are too complicated at the moment, and there can’t be one law that fits all. Each case is different,” Raouf opined.

However, for psychologists like Ahmed Abdallah, legislation alone cannot regulate such issues. “After all,” he insists, “the laws are rigid, and they are barely applied since there is always a trend among Egyptian people to break the laws.”

“People should be rational enough to design their own solutions and resolve their own conflicts as each case is different. Any single rigidly applied law would be a failure. The current law is biased against men in terms of visitation rights, and the suggested draft tends to tip the balance in the opposite direction by discriminating against women. The children are the ones paying the price in both cases,” he said.

The laws are usually derived from Islamic jurisprudence. But the good news is that religion is flexible when it comes to personal status issues, since there is no text in Islamic Sharia law defining a certain age for the custody of children or prohibiting a woman from maintaining custody if she remarries, according to Ahmed Khalifa Sharqawi, a professor of Sharia law at Al-Azhar University in Cairo.

“All the current laws are religiously non-binding, but both the current and the proposed laws could be religiously correct, depending on the case,” Sharqawi explained. “What is really binding, however, are the conditions the two parties agree upon, because Muslims should always stick to promises and agreements.”

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