Who has the right to custody?

By the lawyer of the Justice for All project, Kifah Al-Braim:

Family disputes, and particularly marital ones, are many, and there is no doubt that these disputes have negative effects that appear clearly in the children, especially where the end between the spouses is divorce or separation by death or otherwise. From here a door opens to many family problems in which children are the fuel.

It is known that from birth a young child needs custody to protect them from harm, and it is self-evident that so long as the marital relationship continues the child enjoys that custody in the care of both parents, without any need to set a time at which custody ends.

But if the marital relationship ends, rights arise for children regarding custody, visitation and hosting, which Palestinian law has set out and regulated, providing some suitable solutions to the problems relating to custody. Under the personal status law and the family rights law currently applied in the Gaza Strip, the period of custody is set so that custody continues until a boy reaches seven years, and the judge may order that it continue to nine years if it appears that his interest requires this. Custody of a girl continues for nine years and the judge may order that it extend to eleven years if it appears that her interest requires this, after which her custody passes to the father, in accordance with the text of article 118 of the family rights law.

As for a widow's custody of her children, we find many family problems relating to the custody of a deceased man's children, particularly between the wife and her husband's family, who are keen to keep their grandchildren beside them while their mother holds to her right to have them with her.

The law therefore had the final word, giving a woman whose husband has died the right to custody of her children for an open period, that is until a boy comes of age and a girl marries, so long as she herself has not remarried, in order to put an end to many of the community problems mothers suffer from. This still requires the actual application of this amendment made to the law on this point, as Sheikh Dr. Hassan Al-Joujou, head of the sharia courts in the Gaza Strip, confirmed in an address at the conference "International and national mechanisms for protecting women from violence", stating that a widow is entitled to custody of her children for an open period if she does not remarry.

Many are the mothers who have been divorced, whom circumstances forced into divorce, and who have refrained from remarrying in order to protect and care for their children. Is it reasonable that such a child should be deprived of the custody, tenderness and warmth of their mother, and that she should be repaid by being deprived of her children?

Here we know for certain that no one can take the mother's place in raising and caring for her children and in her great concern for them, particularly as the period of custody mentioned in the law is not sufficient as regards the mother, especially if she has refrained from remarrying in order to care for and keep custody of her children. We therefore hope that Palestinian law and the Legislative Council will approve the draft Palestinian personal status law, which grants a divorced woman custody of her children for an open period if she does not remarry.

In closing I say that the interest of the child in custody requires that they have natural relations and ties with both father and mother, even amid the divorce between them, so that each of them can play their part in raising and guiding the child. Their children's tears will not dry with their divorce, and the wound of their children at the pain of their separation will not heal with the passing of time. Let them keep their children before their eyes, for they are a trust upon them, and let them place their children's interests above their disputes, and remember the words of God Almighty: "The most hateful of lawful things to God is divorce."