First and foremost, it is clear from the appeal that the Applicant ratified the judgment
regarding the daughter Dhuha; the appellant approved the verdict concerning the daughter
(Dhuha), and appealed the decision concerning the custody of his don Waddah. The definition of
custody, as defined by article 109 G/Sh of 1991 states that: (The legal guardian is responsible for
the child’s; education, wellbeing and care as long as it does not conflict with the rights of the
guardian or with the child’s rights). This means the custody is based on favoring the wellbeing of
a child; The judge is a neutral party in all cases, other than custody cases, as he is considered a
third party representing the interests of the child (see legal precedent., decision 307/1993
journal 1993 page number 58). Therefore, the judge examines and investigates all matters to
determine the interest of the child. In this lawsuit, it is apparent that the judge compared the
characteristics of both and mother and father and decided to maintain the mothers custody of
waddah, because she totally free to raise him with her family, who also share the her
responsibility of caring for the children and in making sure they succeed in their studies.
On the other hand, he is not with his mother and father and he works from morning to
night, so it’s clear the court does not rely solely on the age of the appellant’s mother,
but rather other benefits of maintaining custody.
Therefore, based on all this, we decide to support the court’s decision, with a minor
direction: if the appeal is based on “benefit and negligence”, then the evidence of
negligence supersedes the evidence of benefit, because it is regarded as a corner stone
in rejecting the custody, - see judicial precedent number 147/1995 of The Judiciary
Journal for the year 1995-page number 13. And therefore, we decide on the following:
Order:
1. To Uphold the Court Decision.
2. To notify all parties.
(22/2/2016)
Ismat Ibraheem Wahbi
Judge of the Public Court
(Official Seal of the Court)