After a divorce, the question of child custody — hadana — often becomes the sharpest point of tension between parents. Understanding the rules set out by the Family Code helps approach this essential question with more clarity, and above all handle it while keeping in mind the very goal the law itself pursues: the child's best interest.
The Guiding Principle: The Child's Best Interest
Contrary to a sometimes-common belief, custody is not a right automatically granted to one parent: the family judge assigns it based on the child's interest, weighing multiple concrete factors — stability of the environment, capacity to raise the child, availability, and the pre-existing emotional bond. This individualized approach means no two family situations are truly identical, and one should be wary of quick generalizations about "who usually gets custody."
This guiding principle also shapes how the judge interprets each more specific rule of the family code: even a provision that appears rigid on its face can, in practice, bend if applying it strictly would, in a given case, work against the real interest of the child concerned.
Who Can Exercise Hadana?
The Family Code sets an order of priority among people who may exercise custody, generally starting with the mother, then the father, before considering other family members depending on circumstances. This order is not fixed, however: the judge can depart from it when the child's interest clearly requires it, particularly where the priority holder is proven unable to properly assume this responsibility.
It is worth noting that exercising custody is not the same as exercising legal guardianship, which is governed by separate rules: a parent can thus exercise day-to-day custody of the child without alone holding every legal prerogative concerning them, which often requires coordination between parents on important decisions.
The Criteria the Judge Considers
To determine custody, the court examines several factors: the child's age, health, the stability of the living environment each parent offers, proximity to school and the child's usual social environment, and, depending on the child's age, their own view on the matter. This assessment aims to be concrete and pragmatic rather than theoretical, with the judge primarily seeking to preserve continuity and stability in the child's daily life. A sudden change of school, social environment, or routine, even if well-intentioned, is generally viewed unfavorably unless sufficiently justified by a real benefit to the child.
The Non-Custodial Parent's Visitation Rights
The parent who does not have custody retains visitation rights, whose terms are set by the divorce judgment or by an agreement between the parents approved by the court. This right, essential to maintaining the emotional bond between the child and the non-custodial parent, must be exercised in a way that respects the child's stability and routine, without becoming a recurring source of conflict between the parents. In the most tense situations, a written, detailed visitation schedule, rather than oral arrangements open to interpretation, often significantly reduces opportunities for disagreement between parents.
What If Visitation Rights Are Not Respected?
When the custodial parent obstructs, without legitimate justification, the exercise of visitation rights, the aggrieved parent has recourse to the court to enforce respect for his or her rights. It should be noted that repeated or systematic obstruction of visitation rights most often constitutes grounds for forfeiture of custody against the obstructing custodial parent, pursuant to the provisions of the Family Code. Precisely documenting the obstructions observed — dates, circumstances, written correspondence — considerably strengthens the solidity of this step, whether to enforce respect for visitation rights or to request a review of custody arrangements.
Can Custody Be Revised?
Custody arrangements set by a judgment are not fixed forever: they can be revised if circumstances change significantly — a parent's professional or personal situation changing, a move, or the child's needs evolving with age. This possibility of revision allows the family arrangement to adapt to the changing reality of life, rather than remaining locked into an arrangement that has become unsuitable.
When the Custodial Parent Relocates
A move, particularly one involving a change of city or country, can significantly affect the exercise of visitation rights and deserves careful attention before being decided unilaterally. Depending on the circumstances, approval from the court or the other parent may be necessary, and planning ahead often avoids long and costly disputes for both parties.
When Should You Consult a Lawyer?
Whether at the time of divorce, or later to enforce or revise an existing custody arrangement, legal support helps build a solid case centered on the child's real interest, rather than a logic of confrontation between parents. The Cabinet Kaboury, in Rabat, supports parents on child custody matters, with a constant focus on preserving the balance and stability of the children involved.