The head judge of the Jaafari (personal status) court in Baabda, Lebanon, issued a temporary custody ruling Dec. 11 that gives some encouragement to Shiite mothers.
Judge Musa Samouri of the Jaafari court — composed of Sharia Shiite judges — ruled in favor of a woman whose children are above the legal age at which mothers are traditionally granted custody in the Shiite community.
However, the mother who was recently granted custody told Al-Monitor on condition of anonymity that the decision doesn't put an end to her problem, as the ruling can't be implemented easily and the father could still object.
“The competent authorities didn't respond to the ruling because it was an individual ruling that the judge thankfully issued, but this judge is part of an integrated system that favors fathers,” she said.
Samouri told Al-Monitor that he has to abide by the rules currently in force, which means that even if he issues a temporary custody ruling, the father can still object. He said he supports awarding the mother custody if she fulfills the welfare requirements to look after the child.
“There are cases where judicial rulings deviate from the Fatwa Department, and the judge is left to make the most suitable decision for the child. Fatwas are one thing, and judicial rulings are another,” he said. A fatwa is an Islamic legal opinion or pronouncement.
In cases where the mother applies for custody, a Jaafari judge may grant the mother custody by a court order, even if her children have exceeded the legal age set by the Fatwa Department.
Zeina Ibrahim, an activist with the Protecting Lebanese Women (PLW) campaign, told Al-Monitor, “These [court] decisions — albeit minor — are an important step toward getting rid of the injustice that mothers are facing. They prove that the demands of women and the interests of the child are taken seriously after years of being ignored, with mothers not having imagined being granted custody of their children over the legal age.”
"These [court] decisions — albeit minor — are an important step toward getting rid of the injustice that mothers are facing."
Human Rights Watch has long decried the unequal treatment of women in Lebanese divorce and custody cases. Stories of divorced mothers who fought for custody of their children abound in Lebanon; some of the women appealed court rulings from the Jaafari court, while others were imprisoned for violating custody rulings. One such famous case from a year ago involved Fatima Hamzeh, who was jailed for refusing to give up custody of her son. In another case, Rita Choucair, the mother of a 5-year-old boy, got a divorce in 2015 and was banned from seeing or even calling him. Choucair can now see her son, but only for three hours a week. The Jaafari court stipulates that fathers get custody of their sons when they are older than 2 and daughters when they are 7.
Choucair told Al-Monitor, “I was beaten, kicked out of the house and insulted by my ex-husband — only because I want to see my son.”
She said that preventing her son from seeing her is psychological abuse. When she was a child herself, the Jaafari court ruled that she could not see her mother. Her experience made her decide to violate the law and take her son from his grandmother.
Dareen Salman, the mother of a 7-year-old boy, said she hasn't seen her son for a year and a half. She was imprisoned last year in Baabda for a month because she kept him in violation of a Jaafari court order granting custody to the father.
“Ever since I got out of prison, I haven’t learned a thing about my child. My family had to hand him to his father in order for me to be released from prison. I was given the right to see him 15 days a year, but it has been a year and a half since I last saw him,” Salman told Al-Monitor.
There are many similar stories of mothers who have faced such Jaafari court rulings dictated by the Sharia laws of the Shiite community. When fathers are given custody, mothers are only granted the right to see their children 48 hours a week or less depending on circumstances. Shiite citizens in Lebanon have to abide by this law in the absence of a unified law for all Lebanese citizens. Each community in Lebanon has its own rules when it comes to personal status issues.
In 2013, Ibrahim and other women launched the PLW campaign, which is calling for mothers to be granted custody of sons younger than 7 and daughters below the age of 9. According to Ibrahim, the campaign also calls for granting fathers the right to see their children 48 hours a week, as per the fatwa of Shiite cleric Sayyed Mohammad Hussein Fadlallah.
According to the PLW campaign, this fatwa is important as it was issued by a Lebanese Shiite religious authority of significant stature who said mothers should be prioritized in custody cases. Fadlallah cited religious references according to which mothers could be granted custody until their children are 18 years old.
Ibrahim added, “There is also the option of joint custody in the event both parties are eligible. If the parents are capable of raising their child and do not suffer from psychological disorders that could expose their child to harm, one of the parents is granted custody of the children on school days, while the other gets to spend the holidays and summer vacations with them until [the children] are allowed to choose who they want to live with — when boys are 13 and girls are 9.”
Sharia Judge Ali Makki said in a September interview with Al-Modon, a local digital newspaper, “The Shiite community cannot change its rules based on tears and complaints, as it derives its decisions from the stories of the [Prophet Muhammad and his family]. Since these stories and the Jaafari jurisprudence say mothers can have custody of their sons younger than 2 years old and of their daughters below the age of 7, [the prevailing] fatwas will not change.”
Ibrahim said, “Since its inception, the PLW campaign has achieved two main things: First, it raised awareness of mothers’ rights and brought their demands to the attention of concerned people. Second, it created a shock within the Shiite council and got Shiites to defy the unfair rulings issued by their religious authority.”
Legal expert Hassan Bazzi told Al-Monitor, “The origin of the problem dates back to the French Mandate, between 1920 and 1943, when the French high commissioner signed an agreement with community leaders in Lebanon granting them the right to organize the affairs of their communities. After independence, the Lebanese law allowed each sect to organize its own personal status, thus dealing a blow to the principle of equality before the law, which is stipulated by the constitution.”
Bazzi added, “The solution for Muslim communities would be to adopt a unified civil law that takes into account the Sharia provisions. Such a law should stipulate a unified legal age below which mothers should be granted custody of their children. In this law, a civil judge would issue rulings related to a mother’s custody, among other issues related to marriage and divorce. There should at least be one law for Muslims and one for Christians.”
Druze mothers in Lebanon are granted custody until their sons reach the age of 12 and their daughters turn 14, while Sunni mothers are granted custody of their children until they are 12. Meanwhile, Christian Orthodox mothers are granted custody of their daughters until the age of 15 and of their sons until they reach 14. In the Protestant community, the ages are 12 for boys and 13 for girls. The Catholic Personal Status law does not provide for a specific age but stipulates that mothers can nurse their babies until they are 2 years old pending a spiritual court ruling on the fate of the child.