How to file a custody lawsuit

How to file a custody lawsuit

Disclaimer: This is a legal article that provides information that does not replace consulting a competent lawyer to help you and for more accurate information.

The custody lawsuit is filed before the Personal Status Court, as these courts have jurisdiction to consider custody issues and lawsuits arising therefrom, in accordance with Article (33) of the Sharia Litigation Law.

Before filing a lawsuit

If the parents have agreed to custody, the custody application can be submitted electronically according to the approved forms and procedures. Article (38/2) of the Personal Status Law Regulations stipulates that a request submitted after separation between spouses shall be subject to a document approved by the court, which shall be an executive document. Any interested party may also object to what is included in the document by filing a lawsuit before the court. The court may order a stay of execution if harm is feared.

If there is a dispute or refusal from the other party, a custody lawsuit is filed in which the plaintiff requests a ruling assigning custody of the child to him.

Steps to file a lawsuit

1. Preparing the lawsuit document, which includes:

• Plaintiff’s name, ID number, profession and address.
• The defendant’s name, ID number – if available – and place of residence or his last known place of residence.
• Data of the child in custody, including name, date of birth, ID number, or family record, if any.
• Statement of the relationship with the child and the occurrence of separation between the parents, if any.
• Specific request, such as: a ruling assigning custody of the child in custody to the plaintiff and obligating the other party to extradite him.
• Reasons for requesting custody, and proof that assigning it to the plaintiff serves the interests of the person in custody.
• Supporting documents, such as a divorce document or proof of kinship, and any documents related to the reality of custody or the interest of the child.

Article (41) of the Sharia Procedures Law requires that the lawsuit document include the parties’ data, the date of its submission, the court, the subject of the lawsuit, the requests, and their supporting evidence. The executive regulations of the article also stipulate that the newspaper must be submitted, after signing, to the competent court in accordance with the approved form.

1. Submit the lawsuit electronically through the lawsuit filing service available at the Ministry of Justice, choose the custody classification, then fill in the data of the parties and the child in custody, attach documents, and send the request to the court.
2. Selection of the spatially competent court:

• The lawsuit must be filed before the competent court, depending on the defendant’s place of residence.
• In custody lawsuits, a woman has the option to file the lawsuit in her country or the defendant’s country, in accordance with Article (39/2) of the Sharia Litigation System.

1. Complete reporting and reconciliation procedures. The custody lawsuit is one of the lawsuits submitted to reconciliation offices. According to the work rules and procedures of reconciliation offices, the maximum date for the first session in a custody lawsuit is 14 days from the date of registration of the application, and the duration of reconciliation procedures is originally 30 days.

If the two parties agree, the agreement shall be recorded in the minutes of a reconciliation agreement, and the agreement shall be an executive document. If an agreement is not reached, the case will be referred to the judicial department for consideration and ruling.

The basis on which the court considers

After the separation of the parents, custody is originally for the mother, then the father, then the mother’s mother, then the father’s mother, according to Article (127) of the Personal Status Law, with the court may decide otherwise to this arrangement if the interest of the child in custody so requires.

Article (35) of the Personal Status Law regulations also requires the father or mother to have custody based on a lawsuit filed by one of them or the relevant authorities, in accordance with the provisions of Article (131) of the law. According to Article (131), if no one entitled to custody requests custody, the mother is obligated to do so if the child in custody is not more than two years old, and the father is obligated to do so if the child in custody is more than two years old, taking into account the provisions of entitlement to custody and the interest of the child in custody.

The plaintiff must focus in the lawsuit on specific facts, such as the child being in possession or the child’s need for stable care, and state why the continuation of custody with the other party is not valid – if the request is to transfer custody – attaching evidence to that effect. It is not sufficient to suffice with a general statement that the plaintiff is entitled to custody without clarifying the interest of the child in custody.

Important cases

• If custody is to be transferred from one parent to the other, the reason for the transfer and the facts that affect the interest of the child in custody must be stated.
• If a person’s right to custody is forfeited, he may request it again before the court if the reason for the forfeit disappears, in accordance with Article (130) of the Personal Status Law.
• Reasons for the lapse of the right to custody include: failure to meet the eligibility conditions, the custodian moving to a place where the interest of the child in custody is lost, or remaining silent about claiming custody for a period exceeding one year without an excuse, according to Article (128).
• If the defendant does not appear after being notified, the court has the right to continue hearing the case in accordance with the provisions of absence, and in custody cases it has the right to order that he be brought by force in accordance with Article (57/4) of the Sharia Procedures System and its controls.

After the custody ruling is issued and acquires executive status, a request for its implementation can be submitted; The rulings issued regarding custody, preservation, and visitation of the child shall be implemented by force, even if this requires seeking the assistance of the police or entering homes, in accordance with Article (74) of the Implementation Law.

Accordingly, if custody is in dispute, the practical course is to prepare a lawsuit that includes a request to assign custody and its grounds, and submit it electronically to the competent personal status court, attaching identity documents, the division, and documents of the interest of the person in custody, then follow up on reconciliation procedures. If agreement is not possible, the lawsuit is referred to the judicial department for adjudication.

For law and legal consultations..Contact the office of lawyer Abdul Majeed Al Rashid.

References

• Article One Hundred and Twenty-Seven of the Personal Status Law and its regulations
• Article Thirty-Eight of the Personal Status Law Regulations
• Article Thirty-Five of the Personal Status Law Regulations
• Article Thirty-Three of the Sharia Procedures Law
• Article Thirty-Nine of the Sharia Procedures Law
• 41 of the Executive Regulations of the Sharia Procedures Law
• Personal status is one of the work rules and procedures in reconciliation offices