CHILD ABDUCTION IN BAHRAIN
JEREMY D. MORLEY
Warning: Bahrain has not signed the Hague Convention on the Civil Aspects of International Child Abduction
There is no specific law in Bahrain governing child custody, with each dispute examined on a case-by-case basis. When child custody disputes arise between parents, one of whom is a citizen of Bahrain, custody decisions are based on Islamic (Shari'a) law.
Two separate Islamic courts, representing the jurisprudence of the Sunni and Shia Islamic sects, enforce divergent interpretations of Islamic law. In general, the marriage contract determines which court will exercise jurisdiction. If the contract is silent on this issue, the court representing the husband's sect will have jurisdiction. Non-Bahraini nationals, whether married to a Bahraini or other national, may file custody cases through a lawyer approved to practice in Bahrain in the court in which the marriage was legalized, whether Sunni, Shia or civil. Non-Muslims are permitted to file cases in the Bahrain civil court.
In determining issues of custody, Bahraini courts consider the parents' religion, place of permanent residence, income, and the mother's subsequent marital status. Priority is generally given to a Muslim father, irrespective of his nationality. Under Shari''a law a Muslim mother is usually granted custody of girls under the age of nine and boys under the age of seven, at which time custody is transferred to the father. If the mother is unavailable, an infant may be given to the grandmother on the mother''s side until s/he reaches the age of seven or nine.
If the court finds the mother "incompetent," custody of the child, regardless of age, can be given to the father, or to the child's paternal grandmother. A finding of incompetence is left to the discretion of the Shari''a judge. Shari''a courts have found parents incompetent if they are not Muslim or if they engage in behavior that is considered to be inconsistent with the Islamic faith. Remarriage to a non-Bahraini may be considered grounds for a finding of incompetence. Under Shari''a law, if a mother removes a child from the father thus denying him access, the mother''s custody rights can be severed. If both the mother and father are ruled incompetent, custody of the children is given to the women on the father's side of the family.
If a child has attained the "age of discretion," that child may be allowed to choose the parent with whom he or she wishes to live. Since the "age of discretion" has no clear definition, a Bahraini lawyer should be contacted to discuss any specific case.
Enforcement of Foreign Judgments
Custody orders and judgments of foreign courts are not enforceable in Bahrain if they potentially contradict or violate local laws and practices. For example, an order from a U.S. court granting custody to an American mother may not be honored in Bahrain if the mother intends to take the child to live outside Bahrain. Courts in Bahrain will not enforce U.S. court decrees ordering a parent in Bahrain to pay child support.
Non-custodial parents (both the mother and father) are entitled to visitation by prior arrangement of the competent court. Neither the court nor a custodial parent has the authority to stop a non-Bahraini parent from entering Bahrain to visit the child.
The government of the Bahrain does not recognize "dual nationality". When the father is a citizen of Bahrain, children automatically acquire Bahrain citizenship at birth, regardless of where the child was born, and must enter the country on Bahrain passports.
When child custody disputes arise between parents, one of whom is a citizen of the Bahrain, custody decisions are based on Islamic law. There are two Islamic courts in Bahrain, a Shi'a and a Sunni court. As such, specific disputes are examined case-by-case. Child custody cases are complex. Bahrain courts consider the parents' religion, place of permanent residence, income, and the mother's subsequent marital status. Non-Bahrain citizens are free to file a custody case.
Right of Custody
Bahrain courts do not as a general rule award custody of "dual national" (U.S./Bahrain) children to an American mother, even one who is a Muslim. However, custody of a boy under age 7 or a girl under age 9 may be given to the mother. Under Islamic law, the mother can jeopardize her right of custody if she remarries.
Travel Restrictions of Minor Children
When custody disputes arise and a custody case is before the local court, children, regardless of their nationality, are generally subject to court imposed travel bans. Even when custody is not an issue, the father can request that the court restrict the travel of minor children.