Right to Custody
This Article aims to help lawyers and defenders of religious freedom and freedom of belief in helping women whom loses their right to custody of their sons or their daughter's in case of they are non-Muslim and their husband's are Muslims. the article aims in particularly, to clarify the legal procedures necessarily, to assist women in their custody rights without discrimination basis on the religion. On the other hand, clarifying also the procedures that must be followed by the lawyer against these laws which discriminate between folks because of their religious.
- Introduction
- Step 1: Meeting the mother asking her basic information
- Step 2: Lawyer's representation of non-Muslim mother
- Challenging the Law
Introduction
The concept of custody in general means the parents right to care for their children rather than, their livelihood which means the method of that they deem it so appropriate. In the first years of the child l, when a child is below the age of six ( For a Male) and the below the age of ninth (For a Female) The right to custody or the child goes for the Mother. Whether if she was divorced or is in the infallibility of the husband. It is only competent to solely exercise this right because the mother has the innate ability to take care of the child, Then the Muslim personal status sets out other criteria for determining custody whether it is for the mother or the fathe, but we will not be in discussing with in this article.
The Sudanese legislator set another criterion for determining custody, Which is the criterion of religion in case of mixed marriage's, This situation appears only in the case of a Muslim marrying a Christian or Jewish, and the opposite is not true, Since the law prohibits the marriage of a Muslim woman to a non-Muslim person, when a divorce occurs in the case of a mixed marriage, the non-Muslim mother loses her right to custody because she does not profess Islam, and this is the Topic of the article.
Step 1: Meeting the mother asking her basic information
When a Muslim father files a lawsuit against the mother for dropping custody of her children because she is not Muslim, the lawyer defending her should ask her for data regarding the case of field, the mother's religion, the children's ages and when she resides, and whether the mother is infallible or divorced.
Because when considering the dispute about the place of residence of the child, the court takes into account the age of the child and also their parental responsibilities if she the child is over 9 years and the child is over 7 years. The purpose of this info is raised as a payment subject against the text of the law which drops the mother's right to custody for her child because of her religion when the child is Five years old.
Step 2: Lawyer's representation of non-Muslim mother
According to the law on law of 1983, the lawyer in the Sudanese legal system has the public agency with entitles him to appear on behalf of the accused without the need for a power of attorney. Generally, in custody cases based on preference in religion and when initiating proceedings before the court, Counsel is advised to take one of two paths at the beginning of the proceedings:
First, is to submit a petition for the protection of constitutional right before the constitutional court and ask it to issue an immediate order suspending the proceedings before the court of first instance until the constitutional case is decided. To indicate in the constitutional petition the constitutional rights that have been lost according to the facts of the particular case. At the end of the petition, the constitutional court is requested to declare the text of Article 114 of the personal status Act of 1991 unconstitutional.
Second, the lawyer who defends the woman must exercise his professional and technical role in countering the evidence of the prosecution, whether it be documents or witness, if the court determines the burden of proving all or some of the facts on the prosecution. If however, the court places the burden of proving some or all of the facts on the defense, the lawyer must provide all the documents that serve his defense case and the witness depend on them to establish the mother right to custody of her sons and daughters.
At the conclusion of the case will have to come up with a defense final is contrary to the forum and would militate against the law by raising the principle of non-discrimination on the basis of religion as enshrined in the constitutional act and international conventions ratified by Sudan. In particular, Counsel can raise the principle of equal enjoyment of all human rights by men and women as enshrined in international human rights instruments such as Article 1 (3) of the charter of the United Nations, Article 2 of the Universal Declaration of human rights and Article 3 of the two international covenants ratified by the Sudan.
The Sudanese legislator regulated the right to custody in the case of mixed marriage in Article (114) of the personal status Law of 1991, which stipulated that custody should follow the best of the parents ' religion and the mother's custody should be dropped if it is not the religion of the Muslim father by completing custody for five years or when it is.
Religion couldn't only be taken as reason of dropping custody in accordance with the principles of the constitution and human rights, but such provisions are discriminatory in that they make religion a basis for the enjoyment of the right to custody for non-Muslim mothers.
Challenging the Law
At the conclusion of the case will have to come up with a defense final is contrary to the forum and would militate against the law by raising the principle of non-discrimination on the basis of religion as enshrined in the constitutional act and international conventions ratified by Sudan. In particular, Counsel can raise the principle of equal enjoyment of all human rights by men and women as enshrined in international human rights instruments such as Article 1 (3) of the charter of the United Nations, Article 2 of the Universal Declaration of human rights and Article 3 of the two international covenants ratified by the Sudan.
The Sudanese legislator regulated the right to custody in the case of mixed marriage in Article (114) of the personal status Law of 1991, which stipulated that custody should follow the best of the parents ' religion and the mother's custody should be dropped if it is not the religion of the Muslim father by completing custody for five years or when it is.
Religion couldn't only be taken as reason of dropping custody in accordance with the principles of the constitution and human rights, but such provisions are discriminatory in that they make religion a basis for the enjoyment of the right to custody for non-Muslim mothers.