The law stipulates different criteria that determine who will care about the child. The law determines, taking into account the child’s age, which parent has the priority over others to provide their children with suitable care. Egyptian Family law takes these rules from Islam’s Sharia, recognizing that children have special needs in their lives starting from the very first day, and they have to be together with the parent who can deal with these needs.
The Egyptian Family law also determines the age of guardianship and custody according to whether the child is male or female, because their needs are obviously different. According to that, the parent who can provide with the child’s needs is the one who acquires priority in doing that.
The female childcare period:
The law considers that in the first years the child must be with a woman (or women) that take care about it, because women are more able than men to do that.
The act number 25 decreed in 1929 categorizes women according to their priority of taking care of children:
“The mother, then the grandmother from the mother’s side; then the grandmother from the father’s side, then sisters, then sisters from the mother only; then sisters from the father’s side, etc. Only then will the right come to the men side”
We will talk about the ‘keeper’ as a mother, because she is the first one who takes care for babies. It must be noted, however, that the same rules which control mother’s right to care about and keep a child apply to all keepers.
The legal conditions for childcare rights :
The law requires that the keeper abides to some conditions that ensure that she or he is able to provide the child with proper care.
1. Must be with good health in mind and body.
2. Must be mentally sane and have reached the age of legal responsibility (adult).
3. Must be with good manners.
4. Must not be married to anyone who can marry the child ( Unmehram).
5. To be in the same religion not condition.
The period of childcare:
The act amending in 7 march 2005 to provisions number 25 in 1920 article number 20 says that the period of childcare starts from the first day until the age of 15. After that the judge asks the child if they want to stay with the same parent or go to the other one until 21 for males or until time of marriage for females.
Does the keeper have right to move with child from the country of father?
This is a very important matter, especially when the mother has a different nationality from the father. The Sharia and therefore the law use this rule to determine the right of moving to the mother with child.
If the mother is still married to the father, or if she is divorced but still in the waiting period, she has to stay in the same country where the father resides.
If the mother is divorced from father she can move but according to this condition:
1. If she married him in another country, she can go to this country without his permission with the children.
2. If the marriage contract is made in the same country where the father resides, she can move only to the nearest places from father. The rule to know if this place is near or far is determined by the ability of the father to go and come back from seeing children in the course of a single day.
3. The new country has to be safe for child and not be of a lesser ability of the father’s country to provide a comfortable life for the child.
No one except the mother has the right to leave the father’s country with children.
Here is a very important case: if the father gets the children and refuses to give mother right to care and keep the children in the age within which they have to be with her, what is the way to get this right?
The act number 1 in 2000 article number 70 says that the special prosecutor for family issue has the right, if there is legal request from the one who has the right to keep the child in the age of women child care, to make the order to give the child back to the mother until the case of keeping the child is decided by the judge. It means that even if the mother still didn’t get the court decree about the case of getting the child back to her care, she can get that by making a request in front of the family prosecutor to give her a legal decision about that. (legal reaction by Egyptian lawyers)
Sometimes, after the mother gets the children, the father tries to get them and run and escape from her to keep the children with him.
For this the act number 58 in 1937 (Criminal law) says in article number 292 that: “A penalty of detention for a period not exceeding one year, or a fine not exceeding five hundred pounds shall be inflicted on either parent or grandparent who does not hand over his or her likely child or grandchild to the person having the right to claim that child according to the decision of the judicial authority as issued concerning its guardianship or custody. The same penalty shall also be inflicted on either parent or grandparent who kidnaps the child, personally or by others, from those who, by a decision of the judicial authority, have the right of guardianship or custody of the child, even if the kidnapping takes place without coercion or circumvention.”
This is but a small part of the guardianship law. There are many other cases, such as payment for guardianship and custody, the hosting in the time of guardianship and custody, the right to get the children from mother if she doesn’t want to let the father see his children, or if she doesn’t qualify for one or more of the condition to retain this right.