Answer: The court primarily considers the best interests of the child, rather than the formal rights of the mother or father.
According to Article 63, Article 78, and Article 157 of Federal Law No. 28 of 2005 on Personal Status (Note: as of 15/04/2025, this law is no longer in force; Federal Decree-Law No. 41 of 2024 applies):
- The right of custody involves three interests: those of the father, the mother (custodian), and the child.
- If these interests conflict, the court always prioritizes the child’s welfare.
- The custodian must be reliable and caring.
If the father seeks custody, he must prove that the child’s well-being is compromised under the mother’s care. Mere allegations are not sufficient.
Relevant case law:
Case No. 83 of 2025 / Federal Supreme Court / Personal Status