Custody laws maintain a sexist status quo
Despite important strides made by social movements advocating for women’s rights and led by Arab women in the region, there is still a long way to go to combat gender discrimination.
Open Global Rights (29.09.2022) – https://bit.ly/3NTfio1 – It is no secret that national penal codes throughout Southwest Asian and North African (SWANA) countries include discriminatory laws against women in the areas of marriage, divorce, and child custody. Sharia law is used to justify these familial laws throughout the SWANA region, but modern interpretations of Sharia differ from what is actually written in the Quran.
Perhaps one of the most damaging aspects of familial law for women relates to child custody, where mothers find themselves at the mercy of fathers and all-male courts. Although social movements advocating for women’s rights and led by Arab women in the region have been essential, with important strides made throughout the years, more significant legal amendments must be made to personal status laws to address ongoing problems.
Jordan is a prime example. There, familial laws have been a detriment to mothers seeking custody of their children. Under the Personal Status Law, fathers are given wilaya, which refers to legal authority over the child, while mothers are given hadhana, which refers to physical care of the child. However, hadhana can be taken from a mother if she is found to be ‘unfit’ or remarries. Article 223 of the Personal Status Law gives the wilaya to the child’s father. The automatic grant of the wilaya to the child’s father does not change, even if the father acts in violation of the child’s best interests.
Under this law, Jordanian (and foreign) mothers are granted custody of their children until the age of 15, but fathers possess the right to determine their children’s education, country of residence, medical treatment, and religious upbringing. The father is also responsible for obtaining passports and permitting international travel, unless the mother secures the court’s approval to do so in a very long and tedious process.
Farah Shahin (pseudonym), a women’s rights activist and single mother, has lived through this experience. She has been fighting for legal custody of her child for the last three years after divorcing her ex-husband. I was able to connect with Farah through social media after following her activism work, which is particularly crucial given there are few Jordanian women publicly advocating for amendments to the country’s custody laws. Before her marriage, Farah and her supportive family were not aware of the disproportionate effect that custody laws had on women.
It wasn’t until she filed for divorce that she learned of the ways the law works against her, including that it doesn’t permit her to apply for her daughter’s legal registration documents or make any life decisions for her. Since then, Farah has become an activist, speaking out for women’s rights and against discriminatory custody laws. She has, however, faced heavy backlash and criticism from local communities, including from Jordanian women.
Farah further explains that even after being granted a divorce, mothers can still lose custody of their children if the father decides to exaggerate claims of their alleged ‘misconduct’ under interpreted Islamic pretexts, including allegations about friendships with men, immodest dress, or inappropriate upbringing of their child. When women do not comply with the father’s requests or attend meeting times for specific reasons, they could face jail time under the current law.
Given such harassment, divorce and custody battles have discouraged women from seeking divorce out of fear of losing access to their children. This is particularly harmful for women suffering from domestic violence and abuse by their husbands, thereby demonstrating how divorce and custody laws are another example of discriminatory treatment against women.
Further, according to Farah, when a mother loses custody of her child, many times the child will face abuse upon returning to the father or his family. Farah shares, “the familial laws are not only detrimental towards women but also for their children who are subjected to domestic abuse. It only shows that the courts don’t actually care about children, but rather care about keeping the status quo for men.”
Farah stresses the importance of women’s financial independence, needed to battle for child custody in courts and provide a good life for their children. However, this is extremely difficult since only 15 percent of Jordanian women are in the workforce.
And after getting divorced, women are not allowed to remarry for risk of losing custody of the child under Article 171/B. Yet, Jordanian law, along with that of other countries in the region, does not impose the same restrictions on men. This makes dating for divorced mothers extremely challenging, since most women do not want to remarry for fear of losing their child. Courts “prohibit us from having a sexual life because we will be seen as ‘unfit’ mothers, but at the same time they prohibit us from remarrying,” Farah states.
All of this takes a psychological toll on mothers, which can be used against them. Dismally, Farah notes that, “custody battles and divorce ruin the mentalities of women here. When you get divorced, the men make women’s lives miserable, but I still blame the law because it encourages men to do this. What people don’t realize is that laws have direct consequences on society. Therefore, when sexist laws exist in a country, sexism will be prevalent within that society.”
Familial laws have disproportionate negative impacts on women in SWANA countries but also negatively impact women in other parts of the world. Arab women are demanding more from their governments and working hard to raise awareness in their communities, but legal amendments in familial law are needed to change societal norms and the mindsets of future generations, especially in regards to women’s rights and liberties.
Photo credits: Jerry Thoms / Flickr