Ask:
I am a Muslim woman. Two years ago, I got a divorce decree and custody of my children – two sons and a daughter. Last year, the two boys turned 13 and the girl turned 14. Currently, my ex-husband wants to file a lawsuit to get custody of all my children because, according to my ex-husband, they have reached the legal age.
My question: Does my ex-husband have the right to get custody of the children? Do I have the right to file a lawsuit and ask for an increase in child support because my ex-husband's salary has increased? Please advise.
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Answer:
I would advise the questioner the following:
Your husband has the right to file a petition for loss of custody under Article 156 of the Personal Status Act, but it is up to the court to decide in the best interests of the child. If you can prove that the child wants to stay with you and not with the father, your custody will be extended.
The aforementioned Article 156 states: “The right of a woman to care for a child shall cease when the child (male) attains the age of eleven (11) years and when the child (female) attains the age of thirteen (13) years, unless the court finds that an extension of this age limit until maturity (male) or marriage (female) is in his/her best interest.”
You have the right to file a lawsuit for an increase in maintenance because more than one year has passed since the date of the decision. According to Article 64 of the Personal Status Law: “Maintenance may be increased or reduced depending on the change in circumstances. Except in exceptional cases, the lawsuit for an increase or reduction in maintenance cannot be heard before one year has passed from the date of the decision. The increase or reduction in maintenance is calculated from the date the lawsuit is filed in court.”
However, the burden of proof of your ex-husband's salary increase is on you. This is stated in Article 1 of the Federal Law No. (35) of 2022 on the Promulgation of the Law of Evidence in Civil and Commercial Transactions. It states: “1. The plaintiff has the right to prove his claim and the defendant has the right to refute it. 2. The facts to be proven must be relevant to the claim, have an impact on the evidence and be admissible. 3. No judge may make a judgment based on his personal knowledge.”
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