Custody of Tunisian Children from Mixed Marriages: A Clash of Courts


2014-08-04    |   

Custody of Tunisian Children from Mixed Marriages: A Clash of Courts

The demographic makeup of Tunisia has been affected by two important factors that are accentuated by the country's openness to other cultures and civilizations: Emigration and tourism. About one-tenth of Tunisians are emigrants who settled in countries where they sought employment or higher education.[1] Meanwhile, tourism is one of the most important economic activities in the country with millions of foreigners visiting Tunisia annually.[2] Social interaction triggered by emigration and tourism has led to a growth in the phenomenon of Tunisians forming relationships with foreigners, alongside a growth in the phenomenon of families of Tunisian origin living in diaspora countries. This has made mixed marriages an important feature with major implications for the structure of society.
 

Mixed marriages are so common that they have become largely socially acceptable. They are also seen as a privilege whose benefits go beyond the cultural enrichment that multicultural families enjoy. More emphasis is placed on the advantages of having multiple nationalities, such as freedom of movement, especially if the foreign spouse is from a Western country. The advantages that families with multiples cultures and nationalities enjoy can become major disadvantages if a married couple fall out, separate and end up in a dispute centered around child custody. The parental dispute accentuates the cultural and ideological differences within the family, as each parent resorts to their own separate legal and judicial systems in an attempt to ensure that their own culture triumphs in deciding the future of their children. The countries where the couple resided often accuse the countries of origin, including Tunisia, of shielding their own citizens when they abduct children, or taking advantage of their children's visits to impose involuntary changes on their place of residence.
 

French statistics, for example, recorded 158 cases of child abduction by one of the parents in 2012, 17 of them to Tunisia. According to the French statistics, the high proportion of Tunisian involvement in child abductions suggests that the Tunisian system of governance plays a role in protecting Tunisian nationals. The latter use their country as a safe haven, where they can more easily resolve their family disputes outside the jurisdiction of the laws of their country of residence, by forcibly removing the children from their cultural and family environment.
 

This suspicion, corroborated by facts and figures in France and other countries that have cultural links with Tunis through families with multiple cultures and nationalities, is met by a counter-accusation by the Tunisian partner. Tunisian fathers of children born to non-Tunisian mothers accuse the Tunisian judicial system of succumbing to diplomatic pressures from their wives' countries with the result that their children are taken from them without any legal justification. The fathers have accused successive Tunisian governments of negligence in combating the phenomenon of mothers abducting their children from Tunisia by illegal means, including the use of professional criminal organizations.[3]
 

Understanding the reasons behind the accusations and counter-accusations in custody disputes within families of multiple nationalities requires the distinction between families whose regular place of residence is Tunisia, and those who live abroad.
 

Tunisia as the Usual Place of Residence of the Child in Custody
 

During marriage, Tunisian law grants child custody rights to both parents.[4] In the absence of marriage or its breakdown, awarding custody is based on the best interests of the child. The usual approach of the judiciary is to assume that the best interests of the child are served if the mother has custody of her children, unless the court has proven evidence to the contrary. Developments in the legal concept of the best interests of the child means that discrimination between those seeking custody is banned on the basis of religion or nationality, especially if the mother is seeking custody.[5] Consequently, by applying objective criteria custody is awarded in principle to the mother, regardless of her nationality or religion throughout the legal period of the custody. Although the law does not specify the length of that period, the view of the judiciary has settled that custody ends when the child reaches the age of majority, i.e., eighteen years old.
 

Custody gives the mother the right to rear her child.[6] As specified in Article 67 of Tunisia’s Code of Personal Status, it also makes her the child's guardian in matters such as travel, education and financial dealings. The father, on the other hand, has the right of guardianship (when it is outside the authority of the mother who has custody), as well as visitation rights, which allow him to help look after the child and to make sure that the mother is looking after the child properly.
 

The argument over the rights and duties of the mother who has custody and the legal guardian raises the question of whether the mother who has custody has the right to leave Tunisia when, with the breakdown of her marriage, her reason for living there has lapsed, although she still has the right of custody. Article 61 of the Code of Personal Status says that a woman who has custody may not travel in a way that prevents the guardian from exercising his authority as guardian. Judicial practice in Tunisia has been that if the mother moves within Tunisia she does not lose custody. Whereas, if she takes the child outside Tunisia, and if Tunisia was the child’s original place of residence, then that would be cause for the mother to lose custody. Tunisian men who are separated from foreign women maintain that by giving the woman the right to decide on matters related to travel, the system in effect allows the women to leave the country with their children. As a result, this prevents the men from exercising their rights as fathers, an outcome for which they use the Arabic term taghyib abawi, or the French term aliénation parentale – exclusion of the father from the life of the child.
 

By stipulating that a mother who has custody may not move abroad with the child, Tunisian law is consistent with the relevant international agreements. International agreements state that in defining the child's place of residence, the best interests of the child should be served by ensuring that the child remains in their cultural environment, and maintains stable and balanced relationships with their parents. The mother’s deliberate violation of the terms of custody by moving abroad creates a difficult situation for the father. It is hard for a high proportion of Tunisian fathers to defend their rights in the jurisdiction of the country where the mothers have taken refuge, because the visa system prevents them from traveling there. The high cost of litigation in those countries, relative to the resources and income of Tunisians, also creates a de facto obstacle that deprives the fathers of their right to litigate.
 

Even if Tunisian fathers persuade Tunisian courts to withdraw custody from the mothers, the fathers then face the problem of securing enforcement of the rulings in foreign countries, because those same countries accuse Tunisia of failing to enforce similar rulings made by their courts. As a result, the principle of reciprocal treatment arises granting these countries the right not to enforce Tunisian rulings. In practice, the rule of law ceases to operate because the dispute is hostage to considerations relating to international relations. A similar situation, but in reverse,  arises when the child’s original place of residence is outside Tunisia.
 

When the Child has Been a Resident Outside Tunisia
 

Some people bring their children to Tunisia and then seek custody over them. Culture and religion are cited as reasons for seeking custody, along with the argument that it is in the interests of the children that they be brought up in their native country. A number of rulings show that the Tunisian courts, in many cases, upheld the need to maintain the children’s original place of residence (abroad), and to protect the mothers’ rights who have custody rights to recover their children. However, repeated accounts by foreign mothers whose children have been abducted by Tunisian fathers, provide evidence that Tunisian courts are still awarding custody to fathers in the absence of mothers who live abroad, although this is contrary to the prevalent trend in Tunisian judicial thinking. When children are abducted from their original places of residence and then deliberately made to stay in Tunisia, it is difficult for the mothers to regain custody of the children. This is particularly so when the situation that arises from the abduction subsequently creates justifications for refusing to award custody to the mother, on the grounds that awarding her custody would prevent the children from living in a society that would bring them up in the culture and religion of their guardians.
 

The return of the cultural factor in the conditions for awarding custody when the original place of residence is outside Tunisia, shows that the concept of the best interests of the child can be interpreted in ways that seem quite different from its original meaning. The concept then includes interests of quite another kind, allowing the bond of nationality to triumph regardless of the special characteristics of mixed marriages. When the judiciary privileges concepts of 'cultural arrogance' in the name of protecting the culture of the father, or the right of the mother to bring up her children in a culturally developed society, this is an abuse that is practiced in silence against the best interests of children from mixed marriages. It ignores the fact that the law has evolved in a way that shows that a solution to the existing problems requires international cooperation in this area, so that the crime of child abduction is combated through international cooperation and rapid and simplified judicial procedures.
 

This article is an edited translation from Arabic.
 

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[1] Official Tunisian statistics prepared by the Ministry of Social Affairs in 2013 show that there were more than 1.223 million Tunisians living abroad in 2012, compared with 698,000 in 2000, and that 11% of Tunisians live abroad. The countries that had the most Tunisians in 2012 are France (54.7%), Italy (15.4%), Libya (7.8%), and Germany (7.1%).

[2] The Ministry of Tourism says that more than 6,260,000 tourists visited Tunisia in 2013.

[3] Press conference by the Association de promotion de l'homme, de la famille et de la société (the Association for the Advancement of Man, the Family and Society), on October 23, 2013, as covered by the Tunisian newspaper Essahafa in an article headlined: “Children of Tunisian Fathers Abducted from Their Foreign Mothers with Political and Diplomatic Connivance”, October 23, 2013.

[4] Article 57 of the Code of Personal Status.
[5] Article 56 of the Code of Personal Status states: “If the woman seeking custody is not of the religion of the child's father, she does not have right to custody unless the child is less than five years old, and there is no concern the child will grow accustomed to a religion other than the religion of his or her father.”
[6] Article 54 of the Code of Personal Status defines custody as “maintaining the child in the household (of the person who has custody) and bringing the child up”.

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