Custody is not a right belonging to the carer alone. In essence it is a right of the child, and the child's welfare is the governing criterion on which every related ruling is built.
Contents
1) The Nature of Custody
Custody means keeping, raising and caring for a child during the years in which they need care. In Kuwait it is governed by the Personal Status Law, with due regard to the provisions applicable to non-Muslims.
2) Order of Entitlement
The law gives priority to the mother during the early years of custody, given her natural role in care, after which the right passes to the child's other relatives in a prescribed order beginning ordinarily with the maternal grandmother.
- The order is not absolute; it is conditional on the carer meeting the required conditions.
- If a condition fails in the person first entitled, the right passes to the next.
- The court retains broad discretion in the light of the child's welfare.
3) Conditions for the Carer
General conditions
- Majority, sound mind and trustworthiness.
- Ability to raise and protect the child.
- Freedom from contagious illness or any impediment to care.
Specific conditions
- That the female carer not marry someone unrelated to the child, on the detail prescribed.
- Residence in a place allowing the guardian to follow the child's affairs.
- The carer's commitment to enabling the other party's visitation.
4) Lapse and Termination
Two situations must be distinguished:
- Lapse: through failure of a condition — loss of capacity, breach of the duty of care, or marriage to someone unrelated to the child. The right may revive once the impediment is removed.
- Termination: on the child reaching the age fixed by law, at which point their position is considered under the applicable rules and their welfare.
5) Visitation and Overnight Stays
The non-custodial parent — and in some cases relatives — has a right to see the child. Where the parties do not agree, the court regulates visitation by an order specifying:
- Place: a designated venue or a place fixed by the court.
- Time: the day, hour and duration.
- Frequency: weekly or fortnightly according to circumstances.
- Overnight stays: may be ordered depending on the child's age and situation.
6) Enforcing a Visitation Order
Where the carer refuses to comply with a visitation order, the route is legal process rather than confrontation:
- Serve the judgment formally on the non-complying party.
- Record an official statement of the refusal on each occasion.
- Return to the competent enforcement authority to take steps.
- On repeated refusal, rely on it in an application to vary custody.
7) Travelling with the Child
Taking a child abroad is a sensitive matter bearing on the guardian's right to follow the child's affairs.
- The guardian's consent or the court's permission is ordinarily required.
- A travel ban may be sought where there is a fear of non-return.
- The court may permit travel for a defined purpose and period, subject to guarantees.
8) Maintenance and Custody Fees
Maintenance of a minor falls on the father and covers food, clothing, housing, medical care and education. Distinct from it is the custody fee payable to the carer in the prescribed cases, and the housing allowance where the father does not provide accommodation.
