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Few Lebanese disagree that, when it comes to divorce, custody laws side with the father. Many know and acknowledge that the laws’ patriarchal bias is based in the sectarian courts of law that host them, reinforced by the infamous Article 9 of the Constitution. (1) These laws claim to comply with divine prohibition, while religious and political authorities avoid amending them, playing the same broken record of the “crisis” and “country’s priorities”. As if the question of custody wasn’t important enough to be considered, as if it didn’t affect the lives of thousands of mothers and their children!
When it comes to personal and social status in general in Lebanon, child custody is one of the most unjust issues. It submits, among Lebanon’s 18 sects, to 15 laws that end a mother’s right to custody, as per an age cap for children: 12 years old for both males and females if Sunni, and two years old for males and 7 years old for females if Shiite. The cap is two years old for Catholics, and for Greek Orthodox, it is 14 years old for males and 15 years old for females. While other sects may have a few discrepancies, this article will address the issue through the four largest aforementioned sects – as these cover the vast majority of Lebanon’s demographics – in light of the turning points, even the small wins, losses, and the ongoing struggle, all of which have been extremely telling.
“Adulterous” and “insane”... No visitation!
By the sect’s “blessings”, or rather, “orders”, a mother is deprived of custody, and a child is prematurely deprived of a mother’s embrace. In many cases, a mother is deprived of even seeing her kids. A few of the sects have entrenched standards that are disdainful of mothers, where both catholic and Shiite sects have dealt with custody based on a child’s biological need, defining it by the need for nursing up until the age of two.
Known for setting the lowest minimum age for custody, the Jaafari court in Lebanon bases its rule on nothing but the Quranic verse: “Mothers may breastfeed their children two complete years”. (2) It reduces “motherhood” to “nursing” a son or a daughter; the latter is allowed to remain under her mother’s wings for five extra years. On the other hand, Catholics provide the religious courthouse with a “discretionary authority” in what is termed “guardianship” (custody) by the couple, based on the child’s best interest after reaching the age of two.
Notably, the Jaafari court’s tyranny has nothing to do with the Iraqi religious laws of Ali Al-Sistani, a Shiite “Marjii” (religious reference), although Sistani has a wide following among Shiites in Lebanon, who comply with the provisions of the Supreme Islamic Shia Council. Even Iraq – a religious reference – doesn’t seem to be as strict, where the minimum age for custody was determined to be ten years for both sexes.
The demand for a “civil personal status law” still opens up infinite doors to misunderstanding, or to pretending to misunderstand. Those opposed to the law, the majority of whom are clerics, accuse campaigns and feminist advocates for the law of being in violation of “divine law”; of being unbelievers in disagreement with the collective inclination towards “faith”. They even accuse them of practicing injustice, of being a threat to society and families, and of being collaborators who worked for foreign embassies.
When it comes to Catholics, the law seems wonderfully considerate of the child’s “best interest”, explained by examining the importance of the mother’s emotional interest. However, the lax and ready-made exceptions of those interpretations, put forth by the “most powerful”, would soon appear in Paragraph 2 of Article 125 in the Code of Religious Courts. “A mother may be prevented from guardianship over her own children” for many reasons, foremost of which is her being a “nashiz or badly behaved woman” – often described as an “adulterous” or “insane” mother”. Sometimes, a woman is both “adulterous and insane” simply because her husband has said so. The religious court will believe that accusation, even though adultery is actually impossible to prove according to all religious provisions. “Insanity”, on the other hand, implies that a mother is “incapable of raising and protecting a child”, which can easily be proven by her divorcé by presenting evidence that she has taken any kind of tranquilizer.
This kind of charade, always played by the patriarchy, has been forced on Elsie,(3) a Catholic mother. After being accused of adultery, Elsie tested her child’s DNA and proved that he was indeed her husband’s son. After his first attempt failed, the father presented the religious court with falsified documents from a psychologist, who diagnosed Elsie as “mentally unstable”. The story wouldn’t have gone public were it not for the family whose children the allegedly “crazy” Elsie cared for. The family showed solidarity with the mother’s misfortune, and the religious court ruled that she could see her son only 6 hours a week, and only at Zahleh’s police station.
Religion and politics hand in hand… Neither custody nor visitation!
“I wish I’d taken that bullet straight to my heart. I miss you so much, darling. Please ask God to take me to you, my baby”.
A mother’s agony was captured on camera in a video that went viral on February 5th, 2020, stirring public rage in Lebanon on social media. It shows Lina Maher kneeling before her daughter’s tombstone, of whom she was deprived in both life and death. The mother was banned from attending her daughter’s funeral 62 days after her death. Her 15-year-old daughter was shot in unclear circumstances and the father fenced the grave in to specifically prevent his ex-wife from even touching it.
The mother came to weep her helplessness out, from behind the iron bars, while her other daughter is heard gasping from behind the camera, filming her mother. In the meantime, the father attempted to justify what he had done by accusing the mother of “adultery”, and a sheikh from the Jaafari court joined forces with him, calling the mother’s breakdown a “display of worn out and rotten emotions”. (4)
Known for setting the lowest minimum age for custody, the Jaafari court in Lebanon bases its rule on nothing but the Quranic verse: “Mothers may breastfeed their children two complete years”. It reduces “motherhood” to “nursing” a son or a daughter, where the latter is allowed to remain under her mother’s wings for five extra years. Catholics provide the religious courthouse with a “discretionary authority” in what is termed “guardianship” (custody) by the couple, based on the child’s best interest after reaching the age of two.
On its Facebook page, the “National Campaign for Raising the Shia Custody Age” stated that Lina was deprived of seeing her daughter for two years as per an order issued by the Jaafari court. But the same applies to all other sects, where children’s visiting hours are determined by a discretionary ruling that often sides with fathers. In the best of cases, visiting hours never surpass 48 hours a week. Mothers’ sufferings are sometimes worsened by orders that force mothers to see their children in the police station.
In Tripoli, Moutia al-Hallaq was faced with the Sunni religious court’s “fait accompli”, which stipulated that she could see her son Taha in the police station for only 6 hours a week, following an “intervention by a former member of parliament who belonged to an influential religious stream”. Moutia refused: “A police station is no place for seeing my child”, and so she would secretly see her son in a place close to his school. 8 years later, Taha was graduating school, and his mother wouldn’t miss the occasion for the world. Moutia, who had never worn a hijab in her life, entered the theater hall under the cover of a black burka, covering both hands in black. “I brought him a little Quran and a bag of chocolates for a gift. I cautiously walked towards my son and made sure I changed the way I walked, so that nobody made me”.
About 13 years ago, journalist Badia Fahs also refused to comply with such a humiliating condition for visitation. At first, her husband threatened that he wouldn’t allow her to see her children. Then, backed by the religious laws, he did exactly that. She was then granted the right to see her sons Iyad (then two years old) and Ali (then seven months old) between 24 and 48 hours a week, but only in the presence of security forces. Badia refused, bravely and openly exposing the terrible realities of police station visitations decided by the “wolf of the Jaafari court,” which often meant mothers enduring harassment, verbal abuse, and insults… She finally resorted to stealing a few minutes by the school entrance to see her two children; the school administration wouldn’t allow her to talk to them, for fear of provoking the father’s fury, who had threatened the school as well before.
When it comes to the Catholic personal status, the law seems wonderfully considerate of the child’s “best interest” and, hence, of the mother’s emotional well-being. However, the lax and ready-made exceptions of those interpretations, put forth by those in power, would soon appear in Paragraph 2 of Article 125 in the Code of Religious Courts. “A mother may be prevented from guardianship over her own children” for many reasons, foremost of which is her being a “nashiz or badly behaved woman” – often described as an “adulterous” or “insane” mother.
This is how Badia, the daughter of the late well-known cleric Sayyed Hani Fahs, has been unjustly punished for her motherhood. While she’s a mother in the eyes of religious courts, she’s also the daughter of the sheikh known for his opposition to the most influential party in Lebanon; the same political party that supported Fahs’ ex-husband. “My father passed away without meeting his grandchildren,” she says.
Persecution doesn’t stop here though. Even if a child was within the determined age limit, a mother might still be completely deprived of custody if she belonged to a different religion than that of the father or if she remarried following divorce (if Sunni, a mother holds the right to custody until her child reaches the age of five or if her husband was a mahram, an unmarriageable man for the child). In the meantime, an ex-husband has the right to marry whomever he wants and keep the children.
Publicly, the religious Shia authority didn’t deny the grievances; it “condemned” the decisions issued by a “large number of the Jaafari court judges in Lebanon”, as per the head of the Islamic court in the Supreme Shia Islamic Council Ali Makki. It also denied any “legal ascription in the sharia that determined any custody period for the contested parties”.(5)
Talk is cheap, though, and doesn’t undo an injustice done.
Practically, not one reform move was made by the Jaafari court in terms of custody issues. More than a year would pass after this statement; the move would arrive in 2020, a year and a half after the head of the Jaafari court announced a legal proposal, titled the “reform paper”. Custody would thus rely on a “book of conditions” that the couple to be wed decided upon when registering their marriage, and which allows the wife to stipulate custody in case of divorce. However, on the pretext of the Covid-19 outbreak, the book of conditions remained but ink on paper, locked away in a drawer. The initiative was nothing but a “sound bomb” detonated while the Jaafari court was legislatively sound asleep.
The October 17 turning point
Today, and every day, the custody rows confirm that custody’s sectarian halo is an illusion that sectarian parties sustain and by which they are sustained. They do so in order to preserve their political authority, which feeds into the patriarchal system, activated by patriarchal clerics, fathers or otherwise.
News of what MP Nawwaf al-Moussaoui had done in this regard stirred public opinion in Lebanon, especially in Shia circles, when, on July 19th, 2019, he resigned from his position as Hezbollah’s Head of International Relations and as MP in the Lebanese parliament. The affair was interpreted to be the result of a dispute over child custody between Al-Moussaoui’s’s daughter and her ex-husband, who had stalked her while she was driving on a highway. In turn, MP Al-Moussaoui threatened him back with arms. Public opinion was then divided between those who believed that the MP was forced to resign to spare the party any scandals and those who saw that he had willingly resigned to spare himself embarrassment before the party. Both sides presume, however, that the party sides with the ex-husband.
In October 2019, feminist activist Nadine Jouny (29 years old), died in a tragic car accident; her death propelling angry feminist campaigns that brought the question of custody back to the forefront, disputing religious courts of law. They relaunched a campaign that Nadine had always led passionately, raising her voice and banners in protest of the Jaafari court’s decision to take her son Karam away from her very early on. She fought “until her last breath” to see her son and be with him. Nadine consistently documented every detail of her suffering on her Facebook page until her untimely demise, after which, her page was repurposed for obituaries and her name became a hashtag mentioned alongside similar stories that a growing number of divorcees made public.
Days after she passed away, her heated case, along with thousands of others, conjoined the “moment of change” in the October 17 uprising. The demands-based movement breathed life into the question of custody, and helped highlight the tragedy of the issue while resorting to the tools of the “revolution” on social media. It is no wonder then, that Nadine’s struggle and death would become one of the movement’s driving stories. The hashtag #my_custody_against_the_Jaafari_court has revealed dozens of stories since. Moreover, the case introduced fresh calls for separating the religious decision from matters of child custody and other family affairs by passing a “unified civil personal status law”.
For three years, there has been an ongoing “battle” between the religious Shiite authority and the campaigns that seek to “civify” and unite custody laws. Most important of these are led by these NGOs: Kafa, Abaad, Fe-male, among others that advocate civil rights, as well as some supportive media platforms.
As moral and financial corruption was uncovered in religious courts and their supporters, Kafa has worked in a parallel legal path, seeking to mobilize support for a unified civil personal status law. In 2019, it launched the campaign, “It’s time for a unified civil personal status law”, which would grant absolute power to civil courts when applying the law. In case of separation, the bill states that a mutual divorce agreement must be certified by a notary, which would detail the way children’s custody and alimony must be handled. The “joint” quality of parental custody, however, endures – if a child is a minor capable of understanding (between the age of 13 and 18), decisions concerning them cannot be made without their consultation, while giving preference for the child to live with the mother in the family home.(6)
The demand for a civil personal status law, however, still opens up infinite doors to misunderstanding, or to pretending to misunderstand. Those opposed to the law, the majority of whom are clerics, accused campaigns and feminist advocates for the law of being in violation of “divine law”; of being unbelievers in disagreement with the collective inclination towards “religious faith”, even when its clerics practice injustices. The civil campaigns were even accused of being a threat to society and the family institution, and of being collaborators who worked for foreign embassies.
In light of this eternal accusation of treason, the “National campaign for raising the custody age for the Shia sect”, founded by Zeina Ibrahim in 2012 (and co-founded by Nadine Jouny), is keen on not accepting any funding. It resembles the approach followed at the Family Rights Network (which managed to amend the Sunni child custody law in 2011), where the Network not only refused funding, but also tried to amend laws from within religious courts, supported by open-minded sheikhs. Despite all that, the campaign didn’t go by unscathed –sheikhs from the Shiite Islamic Council attacked it, some accusing it of hiding an “Israeli” agenda that seeks to “shift the anti-Israel milieu” by using “foreign social approaches!”(7)
Victories won from within
In 2011, the Family Rights Network amended the Sunni religious law by raising the custody age to 12 years old for both males and females. And in fact, this is the last victory achieved in terms of custody age for the Sunni denomination.
The Sunni experience must be addressed as a whole, while observing the methods used by the movement that crystallized following the October 2019 uprising.
The Family Rights Network was founded in 2005 by lawyer Iqbal Mourad Doughan. Her campaign doubled down on fragmenting personal status laws, starting with the custody age for the Sunni sect, calling it “13-15”, in parallel with building a demands-based cross-sect movement.
In June 2011, the campaign managed to raise the Sunni age of custody from the age of 7 for boys and the age of 9 for girls to the age of 12 for both sexes. The decision was made by the Supreme Islamic Council with a majority of 14 to 13 votes. The decision came into effect once the parliament approved it in August 2011, as per Law no. 177; it aimed to amend Article 242 from the law that organizes the legal Sunni and Jaafari law.
“The Network decided to amend the law from within the religious courts. Although our ideal and inevitable goal is to arrive at a unified personal status law, women’s and children’s suffering cannot wait any longer. That doesn’t mean, however, that our campaign wasn’t being opposed, watered down, or delayed all throughout these 6 years, especially by the Sunni MPs.”(8) Doughan has approached the religious courts directly and spoke with their sheikhs. In debating religion by using religion itself, she managed to pave a successful path. The activist also formed a progressive case for opposing religious laws in Lebanon, being a cleric’s daughter herself, whereby some see her as the face of “Islamic feminism”.
Despite their promises, decision-makers delayed the implementation of the amendment for a long time. And when “enough was enough”, the campaign gathered in a mass rally on June 5th before Dar al-Fatwa, having been notified that the Islamic Sunni Council was convened for their last meeting before closing for the summer. The mufti was quick to lock the doors, but the rally wouldn’t budge, leave, or comply with officials’ requests. After all, the activists have been waiting for this amendment for over five years, and so felt that a few extra hours of waiting wouldn’t hurt. Three hours later, the mufti himself came out, announcing the amendment himself, and so the campaign was successful in winning a victory.
The Family Rights Network were premised on a study of custody laws in all Arab countries, of which the Lebanese custody laws were found to be the most patriarchal. In a meeting in 2006, the head of the religious courts invited all judges over to his house and agreed that there was no religious text that determined the age of custody. The religious sharia sects had left the door open to discretionary interpretation when it came to that question. Undoubtedly, their meeting formed a conceptual turning point, which must be examined on two levels: refuting the concerns that have been stuck in the Sunni religious mentality, and opposing the prevailing idea that the Sunni sect had closed off the door to interpretation.
Christian custody laws diverge
Among the Christian sects, the Greek Orthodox seem the most progressive in terms of custody age (which went up from 9 to 15 years old for girls and from 7 to 14 for boys), and seem to be advancing even further. Today, a bill is being prepared by the Patriarchate of Antioch and All the East, which would raise the custody age to 15 years old for both sexes. The bill also proposes that all siblings are raised by one of the parents until reaching the age of custody. The head of the Greek Orthodox court of the archbishopric of Tripoli, Koura, and their regions, Dr Ibrahim Chahine, uncovered (9) the bill’s details: “Dozens of cases have shown the psychological damage that siblings suffer when separated by way of custody. And we must make sure that the child’s best interest is maintained above all.”
In 2011, the Family Rights Network amended the Sunni religious law by raising the custody age to 12 years old for both males and females. And in fact, this is the last victory achieved in terms of custody age for the Sunni denomination. In 2005, the Family Rights Network was founded by lawyer Iqbal Mourad Doughan. Her campaign doubled down on fragmenting personal status laws, starting with the custody age for the Sunni sect, calling it “13-15”, in parallel with building a demands-based cross-sect movement.
“The Network decided to amend the law from within the religious courts. Although our ideal and inevitable goal is to arrive at a unified personal status law, women’s and children’s suffering cannot wait any longer. Our campaign was opposed, especially by Sunni MPs. So, we approached the religious courts directly and spoke with the sheikhs. Debating by using religion itself was a successful course of action”. The Family Rights Network were premised on a study of custody laws in all Arab countries, of which the Lebanese custody laws were found to be the most patriarchal.
On the other hand, custody remains at an impasse when it comes to Catholics, with no amendments made in that regard.
Causes intertwine; some pertain to the shaken ties between the religious court and the Vatican in the past six years, some pertain to structural issues related to the law, while some are cultural, consolidated by a faulty understanding of the authority that courts may exercise.
To begin with, the current controversy is mainly held in monasteries and religious courts on pre-custody questions, especially when it comes to divorce cases (marriage annulments), which have become even more difficult to conclude with the financial crisis in Lebanon. Added to that are the administrative corruption files and the repercussions that followed the church’s cover-up for a priest indicted by both the Vatican and France for sexual harassment and child molestation. In the eyes of the Vatican, the integrity of the religious court in Lebanon has never been more questionable, and the issue of child custody is not even on the table.
Backwardness is clearly visible in the structure of the law itself, where there are no sections that address the question of child custody after separation. As for custody age, determined to be two years old, it has proven to be a patriarchal decision, made by taking only nursing into consideration. It appears in the chapter: “Fatherly authority and child guardianship until adulthood”. It is a labour division of sorts, and is laid out as follows: “Nursing is a mother’s task, while the rest of the rights and duties related to parental authority are mainly a father’s responsibility” (Article 123).
The Greek Orthodox seem more progressive in terms of custody age (which went up from 9 to 15 years old for girls and from 7 to 14 for boys), and seem to be advancing even further. Today, a bill is being prepared by the Patriarchate of Antioch and All the East, which would raise the custody age to 15 years old for both sexes. The bill also proposes that all siblings are raised by one of the parents until reaching the age of custody.
Needless to say, Catholics and the Lebanese population as a whole are convinced of a cultural legacy that claims that the church’s legal provisions must be a divine representation of the Vatican. Reality is quite different, however. It provides considerable chances to reform custody laws for Catholics, as the Holy See courts, headed directly by the Pope, “can (only) comprise, spiritually and administratively, all believers of the Catholic world”. The Apostolic Roman Rota Court, which branches out from the Holy See, represents the Supreme Catholic Court of Appeals and is “only one” in the world that has a right to produce any religious legal interpretations”. And yet, “it doesn’t look into civil questions, like alimony, guardianship, custody (custody is a civil question then, according to the Vatican!), visiting hours, accompaniment, and others”. The irony is quite fascinating too – as these very definitions are published on the official webpage of the Maronite religious courts! (10)
Multiple discriminations
In a parallel context, it appears that the Sunni case is the only one that managed to achieve a breakthrough by means of a popular movement. Other movements that tried and failed to amend personal status laws included the Greek Orthodox in 2003, the Anglicans in 2005, and the Druz in 2017. Those laws that are imposed by high religious authorities entwine with influential spheres abroad. As such, they cannot possibly be in line with the demands made by the Lebanese citizens of these sects.
Even the Sunni sect’s achievement, though important, does not disprove that their decision-making was and still is controlled by patriarchal authorities, starting with the parliament, the head of government, and of course the mufti. Researcher Samer Ghamroun also notes that religious judges will attempt to protect their own authority. Following a confrontation that they had with the juvenile judges between 2007 and 2021, “some judges considered that applying the religious rules of custody imposed by religious courts may put some children in harm’s way, which would call for their intervention”. Such a factor made way for a competitive logic between the two legal systems when it comes to the party authorized to protect a child – which multiplied the concern shared by religious and civil judges alike.
On the other hand, such a change has enabled the diagnosis of some sustained structural factors that could be reinvested. Religious legal institutions have been at the receiving and perplexed end of the call out culture exercised for the past two decades by feminist and rights-based movements. They have put these religious courts and their spokespersons in a relentlessly defensive position.
The road for legal change that the Sunni realized was paved by the presence of “reform” judges, even if they constitute a minority. As per Doughan and many other feminist activists, those judges were their “allies” from within the courtrooms.
The patriarchal system in Lebanon has a history of blackmailing divorced mothers, using their softest spot, their children, to take revenge on and humiliate them. After all, one can only imagine how many Elsies, Moutias, Linas, Badias, and Nadines in Lebanon are deprived of their children as a result of unfair sectarian laws? And how many mothers are oppressed in their own homes? How many mothers know what awaits a divorcee, and so hold off filing for divorce – fearing that they might, in so doing, be deprived of their children?
In 2015, with the state of custody unchanged, Human Rights Watch examined 101 cases of Christian, Muslim, and Druz court decisions and concluded that religious courts would “rarely look into a father’s behavior when ruling in custody cases. On the other hand, these courts would scrutinize a woman’s behavior in ways that reflected social biases or stereotypes. This resulted in there being a higher chance of taking custody away from a mother than from a father.”(11)
The October 17 uprising breathed new life into the demands-based movement on the question of custody. It helped highlight the tragedy of the issue while resorting to the tools of the “revolution” on social media, while introducing fresh calls for separating the religious decision from children’s custody and all issues of family affairs by passing a “unified civil personal status law”.
Discrimination isn’t sexist only, then, but even uglier. Custody authorities in Lebanon discriminate between mothers themselves and children themselves, between the male and female children of the same family – all based on a sectarian rule that must be taken apart – and perhaps it already is.
On the other hand, while some glimmers of hope eventually bump into a thick sectarian wall, demands-based movements are still stirring stagnant waters in spite of and because of the unjust laws. Campaigns for custody have been amassing struggles and experiences and could certainly make use of the margins of success. The path to success is scattered among the sects and suspended in their social spheres. While frustrations continue, they are, after all, a positive sign indicating that the struggle has not stood still!
The content of this publication is the sole responsibility of Assafir Al-Arabi and Rosa Luxemburg Foundation cannot accept any liability for it.
Translated from Arabic by Yasmine Haj
Published in Assafir Al-Arabi on 23/06/2022
1- Article 9 of the Lebanese Constitution: “There shall be absolute freedom of conscience. The state, in rendering homage to the God Almighty, shall respect all religions and creeds, and guarantee, under its protection the free exercise of all religious rites, provided that the public order is not disturbed. It shall also guarantee that the personal status and religious interests of the population, to whatever religious sect they belong, shall be respected.”
2- Surat al-Baqarah: 233.
3- https://bit.ly/3NslykN
4- Al-Abed, Iman. “Women in agony and the Jaafari court’s ‘Book of conditions’: Reform is a sound bomb”, Almodon, 1 March, 2020 [in Arabic].
5- https://al-akhbar.com/Community/302629
6- https://kafa.org.lb/ar/media/358
7- Al-Moussaoui, Fatima, and Al-Banna, Sarah. “Amending the sectarian custody age in Lebanon”.
8- In an interview conducted over the phone with the lawyer Iqbal Doughan in June 2022.
9- In an interview conducted over the phone with Father Ibrahim Chahine, June 2022.
10- The official website of the Maronite courts: http://bkerki.org/tribunalmaronite.html
11- https://www.hrw.org/ar/news/2015/01/19/266120
