Child custody and guardianship

What is the issue?

Across much of the region, family laws draw a distinction between “custody” (day‑to‑day care) and “guardianship” (legal authority and decision‑making). In practice, this often means that:

• Mothers may be granted custody of their children after divorce, especially when they are young.
• Fathers typically retain guardianship, including decision-making over schooling, healthcare, and travel.
• If a woman remarries, she may automatically lose custody of her children, regardless of the child’s best interests.

By contrast, fathers’ rights are rarely affected by remarriage. A father can typically remarry as many times as he wishes without any impact on his guardianship or custodial rights. This imbalance reflects and reinforces a view of mothers as temporary caregivers, while fathers are treated as permanent legal authorities over children.

How does this affect women and children?

These rules have serious consequences:

• Women are forced to choose between forming new relationships and maintaining custody of their children. Many remain in unhappy or abusive situations because they fear losing contact with their children if they leave and later remarry.
• Even when women have custody, they may lack the authority to make key decisions in their children’s lives without the consent of the father, who may be absent, abusive, or unwilling to cooperate.
• Children may be uprooted from their primary caregiver when a mother remarries, disrupting their sense of security and stability, regardless of the principle of the best interest of the child.

This framework can also be used as leverage in divorce negotiations, with fathers threatening to remove children from their mothers if certain conditions are not met.

Religion, law, and alternative interpretations

In Lebanon, with regard to the custody of children, the laws differ between sects. Some sects give priority to the father in the custody of children after a certain age, while others grant custody to the mother, but with complex conditions that make it difficult for her to maintain such custody.

Dominant narratives often claim that such custody and guardianship rules are required by religion and therefore cannot be changed. However, feminist scholars and organisations such as Musawah have demonstrated that there are other accepted Islamic interpretations that:

• Place the best interests of the child at the centre of decisions about custody.
• Recognise the caregiving role and legal responsibilities of mothers.
• Allow for more equal sharing of rights and responsibilities between parents.

International and regional human rights law

Internationally, instruments such as the Convention on the Rights of the Child emphasise that the child’s best interests must be a primary consideration in all decisions affecting them. The CEDAW Committee has also issued detailed guidance on ensuring equality in marriage and family relations, including in relation to custody and guardianship.

At the national level, some countries are beginning to reform their laws to reflect these principles. For example, draft reform proposals in Morocco include recognition of mothers’ right to retain custody even after remarriage, moving away from automatic loss of custody and towards a more child‑centred approach.

International Conventions

The key international conventions in family law include the UN Convention on the Rights of the Child (1989), which prioritises the best interests of the child; the Hague Conventions on child abduction (1980), parental responsibility (1996), and intercountry adoption (1993), which govern cross-border family matters; and CEDAW (1979), which ensures women's equality in marriage, divorce, and parental rights. The Convention on Consent to Marriage (1962) further protects individuals by requiring free consent and encouraging minimum marriage ages.

CEDAW General Recommendations

The CEDAW Committee has issued several General Recommendations addressing family law, including GR No. 21 on equality in marriage and family relations, GR No. 29 on the economic consequences of marriage dissolution, GR No. 31/18 on harmful practices such as child marriage, and GR No. 35 on gender-based violence. Together, these recommendations guide states in eliminating discrimination against women across all aspects of family life.

What Hurra members are doing to reform child custody and guardianship laws

We work to transform family law from a system of paternal authority to one centred on the "best interests of the child." Our collective efforts include: 

• Reform: the coalition pressures governments to repeal discriminatory "remarriage penalties" and to grant mothers equal legal guardianship, allowing them to make critical decisions regarding their children’s health and education.
• Resilience: providing direct legal assistance and peer support groups for divorced mothers navigating complex court systems, helping them protect their parental rights against legal fragmentation.
• Representation: we facilitate dialogue between feminist activists and religious scholars to champion egalitarian interpretations of parental responsibility.

By amplifying the lived experiences of mothers across diverse legal systems, Hurra ensures that the movement for parental equality remains intersectional, protecting the bond between mothers and children across the region.

In Egypt: 

The Association for Egyptian Female Lawyers (AEFL) has been working to embed disability rights into the language of the draft Personal Status Law (PSL), ensuring that both mothers and their children with disabilities are protected, with specific safeguards designed around their particular needs. In parallel, EFFD conducts specialised training for journalists on feminist media coverage, helping them deconstruct the social discourse that sustains discriminatory provisions in the current PSL, a discourse that often justifies these provisions on the grounds of compliance with social and religious norms. EFFD also trains lawyers on how to provide feminist, gender-responsive legal aid to women and girls generally, and specifically in custody and guardianship disputes, while integrating sensitivity to and recognition of the rights of people with disabilities in accessing justice in these cases.

This sustained, multi-level advocacy is already yielding results: the government's proposed PSL, currently under review and consultation, has embedded disability-inclusive language in one of its articles related to access to procedures; a positive step toward a more holistic approach to custody and guardianship reform.