iv. Child Custody
In traditional Islamic law, a woman who remarried automatically lost custody of her children.104 This legal principle stemmed from the patriarchal assumption that “no man’s children should be raised by another man.”105 The reformed Mudawana attempts to mitigate this provision, but the results are not completely satisfactory.
Within the reformed Mudawana, Articles 173, 174, and 175 address the issue of child custody for remarried women.106 These three articles outline several technical requirements that regulate this issue. Most importantly, Article 174 states that a woman may not remarry without losing custody of her children unless the husband is suitably removed from the bloodline, the husband is the child’s legal guardian, or she is the child’s legal guardian.107 Article 175 serves as a quasi-loophole and allows the mother to retain custody even if she remarries or moves away from the husband, so long as the child suffers no harm.108 Finally, a woman will not lose custody of her children even if she remarries provided one of the four following situations applies: 1) the child is seven years old or younger or separation would harm the child; 2) the child has an illness or condition that makes caring for the child by anyone other than the mother impossible; 3) the spouse is the legal guardian of the child; or 4) the mother is the legal guardian of the child.109 While these reforms are an improvement from traditional Islamic law, the numerous provisions and vague language will likely continue to pose problems for women wishing to remarry and retain custody of their children.
Reforms to the child support provisions offer greater improvements and stronger legal protections. Under the old code, if a husband repudiated his wife and a divorce resulted, the husband essentially repudiated his children as well and effectively voided any obligation toward them.110 Under the reformed code, the husband must provide food, lodging, and financial support.111 In addition, the government created a special fund for children whose fathers could not provide for them due to force majeure.112 Another positive change is that once a child turns fifteen, he or she may decide which parent to live with following a divorce.113 In the previous code, boys could make this decision at age twelve, butgirls could not make this decision until they turned fifteen.114 This change eliminates a gender bias favoring boys and implements a gender-neutral rule that demonstrates the reformed Mudawana’s broad commitment to advancing women’s rights.
Perhaps the most positive child custody reform relates to the judiciary. Under the previous code, there was no time limit for resolving legal disputes from a divorce.115 Judicial inaction could cause a wife and children to wait for years to receive any support from the husband.116 Indeed, some cases languished for over fifteen years without reaching a verdict. Under the reformed Mudawana, a judge must close the case in six months.117 Finally, the government increased the number of family courts in anticipation of an increased family court caseload.
While the reformed Mudawana does not offer completely satisfactory changes regarding child custody, especially regarding women wishing to remarry, the divorce reforms extend important rights to women and children.