Custody of Children under the Omani Personal Status Law No. (32/97)

Preamble

Custody has been generally defined in the Omani Personal Status Law under Article (125), which states:

“Custody is the preservation, upbringing, and care of the child in a manner that does not conflict with the guardian’s right of guardianship over the person.”

Legally, and in principle, custody of children belongs jointly to both parents as long as the marital relationship between them continues. However, if the marital relationship encounters problems and ends in divorce, or if the father passes away, custody of the children transfers to the mother, provided she meets the custody conditions stipulated in the Personal Status Law.

What are the conditions of the custodian under the Personal Status Law

The custodian must meet the following religious and legal requirements:

Sanity.
Maturity.
Trustworthiness.
Ability to raise, protect, and care for the child.
Free of serious contagious diseases

In addition, the Personal Status Law stipulates further conditions for the custodian:

A. If the custodian is a woman:

She must not be married to a non-relative of the child with whom she has consummated the marriage, unless the court decides otherwise in the best interest of the child.

B. If the custodian is a man:

He must have a suitable woman in his household capable of providing custody.
He must be a close relative (mahram) of the child if the child is female.

What is the order of priority for custody according to the Personal Status Law?

Generally, under Sharia and law, custody is the duty of both parents as long as marriage continues between them. If they separate, custody goes to the mother, then the father, then the maternal grandmother, followed by the child’s relatives in the following order: maternal aunt, then paternal grandmother and above, then sister, then maternal great-aunt, then maternal aunt, then paternal aunt, then paternal great-aunt, then cousin (daughter of brother), then niece (daughter of sister). Preference is given in all cases to full-blood relatives, then maternal, then paternal relatives—unless the judge rules otherwise in the best interest of the child.

How long does custody remain with the custodian?

Article (129) of the Personal Status Law regulates the duration of custody, with Article (127) stating:

Custody continues until the male child reaches the age of seven, and custody of the female child continues until puberty, unless the judge decides otherwise in the best interest of the child.”

Thus, Article (127) gives the judge full authority to extend custody if the court deems it in the best interest of the child. The judge has absolute discretion in determining the child’s welfare and must always prioritize the best interest of the child under all circumstances.

When does the custodian lose the right to custody?

By law, the custodian loses custody in the following cases:

If any of the conditions in Articles (126, 127) of this Law are not met.
If the custodian settles in a place where the guardian is unable to fulfill his duties.
If the person entitled to custody remains silent for one year without excuse before claiming it.
If the new custodian resides with someone whose custody was revoked, for reasons other than physical incapacity.

What are the rights of either parent and close relatives regarding visiting and accompanying the child?

The Omani Personal Status Law has preserved the right of either parent and close relatives to visit and accompany the child during the custody period. Article (137) provides:

A. If the child is in the custody of one parent, the other parent has the right to visit, host, and accompany the child as determined by the judge.

B. If one of the parents is deceased or absent, the child’s close relatives (mahram) have the right to visit as determined by the judge.

C. If the child is with someone other than the parents, the judge appoints the eligible relatives for visitation.

Conclusion

We pray to Allah Almighty to make this effort and work purely for His sake. May He guide our steps, bless the efforts, and make this study and work beneficial. He is All-Hearing and Responsive.

All praise is due to Allah.

Prepared by: Dr. Mohammed Gharbawi
Al-Alawi & Co – Lawyers and Legal Consultants
Muscat, Sultanate of Oman