Notes on Kuwait, Child Custody and Child Abduction

By Jeremy D. Morley

 

1.            Family and personal status law in Kuwait is governed by religious courts. In Kuwait the Sunni and Shi’a have their own court chambers to handle such matters in accordance with their own jurisprudence. In the case of Sunni Muslims, the Sunni chamber of the Family Court in Kuwait will apply the Maliki or the Hanbali interpretation of Islamic law. The Kuwaiti legal system is based on Islam and is codified into an “Islamicized” code as to marriage, divorce and child custody. 

2.                  The governing laws that apply in child custody cases in Kuwait are the Kuwaiti Constitution and the Kuwaiti Personal Status Law. Article 2 of the Constitution is entitled “State Religion” and it provides that “The religion of the State is Islam, and the Islamic Sharia shall be a main source of legislation.” Such laws are all based on concepts of gender appropriateness, age appropriateness and personal “morality.”

3.                  Pursuant to the Personal Status Law of Kuwait, the Father is generally the legal guardian of the child, while the mother usually has physical custody of children up to a certain age. Article 209 of the statute states that the person with the most right to guardianship of a minor is the father, followed if he is unfit by the father’s father and the male relations in the other of inheritance.  

4.                  Article 192 of the Personal Status Law provides that, “The non-Muslim hadina [person who has residential custody] of a Muslim child shall be entitled to its custody until it starts to understand about religion, or until it is feared that it may become familiar with a faith other than Islam, even if it does not understand about religion. In all cases, such a child shall not remain with such a hadina after it has reached five [now 7] years of age.”

5.                  Pursuant to Article 190 of the Personal Status Law a mother’s claims of custody over her children will be barred if she is shown to lack the necessary fitness and moral character, considered in accordance with Islamic principles of submission to her husband and her personal sexual and other conduct, such as whether she lives with a non-Muslim or has or has had a relationship outside marriage with a man.

6.                  The U.S. State Department Human Rights Country Report on Kuwait states that, “In the event of a divorce, the law grants the father custody of children of non-Muslim women who fail to convert.” 

7.                  In Kuwait, foreign custody orders are merely items to consider as part of an overall de novo custody review. Custody orders and judgments of foreign courts are not enforceable in Kuwait if they potentially contradict or violate local laws and practices

8.                 If a woman obtains custody in Kuwait it will merely be what is often described as “captive custody,” meaning that she will be prohibited from traveling with the child out of Kuwait without her ex-husband’s or the court’s permission. An integral component of guardianship in Sharia law is that the child must reside in the same location as the guardian even if another person has residential custody. Article 195 of the Personal Status Law specifically provides that the hadina (custodian as to residency) may not remove the child from the area of the guardian’s residency without his express permission.

9.                  Travel bans may be imposed by the Kuwaiti government or by private citizens against Kuwaitis and non-Kuwaitis, including U.S. citizens, if there are claims concerning matters such as unresolved financial disputes. Such bans prevent the individual from leaving Kuwait for any reason pending resolution of the dispute.

10.              Kuwait has not acceded to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. Kuwait has chosen not to adopt the treaty, even though it has been adopted by 95 other countries, including Islamic countries such as Morocco, Turkey and Turkmenistan.

11.              There can be no extradition from Kuwait for international child abduction, since there is no extradition treaty between the U.S. and Kuwait.