Custody is defined as an act of looking after a child and a legal duty to support them when they are of a certain age. That age was fixed at 15 years old by article 20 of the modified law of 2005.
Thus, in the case of divorce, custody of the children is granted to the mother, - by principle - as long as her situation does not fall into one of the exceptions established by the legislator. If the mother does not meet the custody conditions or is deemed unfit for custody, custody returns to the other female relatives of the family in the order provided by law. If none of the women are eligible, custody rights are transferred to the men of the family.
Does a woman’s custody rights for her children change when she remarries after
divorce or legal separation?
In Egypt, child custody laws are based on principles of Islamic law, focusing on the best interests of the child and ensuring their proper care and upbringing. It's essential for parents to understand these laws as they navigate the complexities of custody arrangements following a divorce or separation.
Custody refers to the responsibility of nurturing and caring for a child. Legally, it encompasses the obligation to raise, protect, and care for a child at a certain age by those entitled to custody.
The Supreme Constitutional Court defined custody in a ruling on May 15, 1993, in case number 7 for the eighth judicial constitutional year, stating:
"Custody, in its original legislative basis, is a guardianship for upbringing, aimed at caring for the child and ensuring their welfare during the early years of life. The primary concern is the child's interest, which is fulfilled when the custodian—who has the right to raise the child—embraces the child as she is the most protective, caring, and knowledgeable about the child's needs. Removing the child from her custody during this delicate period is harmful, as she is more intimately connected to the child and possesses the patience needed to cater to their needs."
According to Egyptian law, a mother's custody rights are automatically revoked if she remarries a foreign man. Article 20, paragraph 5 of Law No. 1 of 2000 concerning personal status states that:
"the mother has the right to custody of her child as long as she is eligible for custody. If the mother is absent or unfit for custody, the right of custody is transferred to the child's maternal grandmother, then the paternal grandmother, followed by the maternal and paternal aunts in that order."
However, the hierarchy of custody rights has been revised in the new personal status law, placing the father in second place for custody immediately after the mother, whereas the previous law had a different structure.
Changes began in 2023 following a ruling by the "31st" family affairs circuit of the Cairo Court of Appeals, which established a significant legal principle for custodial mothers who remarry. The ruling stated:
"The custody of the custodial mother does not end upon her marriage to a foreigner, as long as there is no proven harm to the child from living with their mother after her marriage, in line with the principle of minimizing harm. She retains the right to custody and is prioritized in the order of custodians, as this best serves the child’s interests."
This indicates that when there is a potential risk to the child, the lesser harm is preferred, emphasizing the child's right to
live with their mother, even if she marries a foreigner. This was established in appeal number 9506 for the year 140 of personal status cases.
This new judicial principle appears to be easing the situation for custodial mothers contemplating remarriage to a foreigner, which could lead to a significant shift in Egyptian personal status law.
Differences between the French Law and the Egyptian Law:
In French law, parents can share custody of their children post-divorce through mutual agreement, and if they cannot reach an agreement, a family court judge can make a ruling based on the child's best interests, asoutlined in paragraphs one and two of Article 373-2-9 of the French Civil Code.
In contrast, Article 20 of Law No. 25 of 1929, amended by Law No. 100 of 1985 regarding certain provisions ofpersonal status, typically grants custody to the mother or female relatives of the child. If no suitable female custodian is available or their custody period has lapsed, custody then goes to male relatives in the order specified by law.
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