Child Custody (hadana) After Divorce in Morocco
If you are going through a divorce and children are involved, hadana — custody — quickly becomes the question that matters most. The Family Code (Moudawana, Law No. 70-03) sets out who keeps the child, until what age, and what can cause this right to be lost. Here is what the text actually says.
The essentials in brief
So long as the couple remains married, custody belongs to both parents together [Art. 164]. Separation changes everything: custody continues until the legal age of majority, set at 18, and at 15 the child may choose for themselves which parent will assume it [Art. 166]. The parent who does not have custody retains a right of visitation [Art. 180]. Hadana is never acquired forever: integrity, fitness and the child's interest are the real conditions [Art. 173].
Who has custody, and until when
Let us start with the starting point. During the marriage, hadana falls to the father and the mother jointly [Art. 164]. There is no "primary carer" so long as the conjugal bonds subsist: both bear the child.
The breakup of the couple reshuffles the cards. The Code provides that custody continues, for boy and girl alike, until the legal age of majority [Art. 166]. That majority the text sets at 18. Not 16, not 21. Eighteen.
And then there is this threshold that many overlook: 15 years. When the conjugal relationship is ended, the child who has reached fifteen full years has the right to choose which of their father or mother will assume their custody [Art. 166]. It is the child who decides, in this age range, between their two parents — to the exclusion of any other person, unless they do not exist.
In the absence of the father and the mother, the child may then choose one of their close relatives, such as the maternal grandmother or the most fit of the relatives [Art. 166]. Two conditions govern this choice: it must not run counter to the child's interest, and the legal representative — the one exercising guardianship — must give their consent [Art. 166]. If the legal representative refuses, the judge is seised to rule according to the minor's interest.
Remember the mechanism: marriage fixes joint custody, separation triggers the order of devolution, and 15 opens the floor to the child.
The conditions for assuming hadana
Having custody is not automatic. Article 173 lists what must be met: legal majority for any person other than the father and the mother, rectitude and honesty, the capacity to raise the child and ensure their protection on the religious, physical and moral levels, as well as to attend to their schooling [Art. 173].
Note the nuance on age. Majority is not required of the parents themselves to keep their child; on the other hand, any other custodian must have reached 18 full years [Art. 173]. A grandparent, a relative: 18 years minimum.
The text adds a condition that is often decisive: the non-marriage of the person seeking custody, except in the cases provided for in articles 174 and 175 [Art. 173]. Frankly, this is where many cases turn.
And custody remains reviewable. If a change liable to harm the child arises in the custodian's situation, the custodian forfeits their right, which passes to the next person in the order of priority [Art. 173]. The court, for its part, has the obligation to ensure that no obstacle makes the prospective custodian unfit, and to conduct its own investigations to verify that they are of integrity, trustworthy and capable of raising the child [Art. 173].
Honestly, the lesson is simple: hadana is earned, and it is kept.
The mother's remarriage: the nuance that changes everything
Here is one of the most misunderstood points. It is often believed that a mother who remarries automatically loses custody. The text is more subtle.
The marriage of the woman who has custody entails, in principle, the devolution of custody to another person [Art. 173]. But Article 175 provides exceptions. The mother's marriage does not give rise to the forfeiture of her custody right in the cases listed, in particular if the child has not exceeded the age of seven [Art. 175].
And after seven years? The forfeiture is not automatic. It is subject to an action brought, by any interested person, before the family court — the jurisdiction competent in matters of divorce and custody [Art. 175]. The court then examines the request taking into account the child's interest and the concern to spare them the harm that separation from their mother would cause [Art. 175].
Article 175 also provides a financial component. When the child continues to live with their mother at the new marital home, the father is relieved of the child's housing costs and of the custody remuneration, so long as the marriage contract between the custodian and the new husband remains in force [Art. 175]. Beware, however: the maintenance due to the child remains an obligation borne by the father [Art. 175].
Before signing anything, ask yourself: do the child's age and your situation fall within an exception of Article 175?
The right of visitation and travel
Losing custody does not mean losing the child. The father or mother who does not have hadana has the right to visit the child and to receive them [Art. 180].
How is this visitation arranged? The parents may amicably agree on its terms and must communicate their agreement to the court, which records it in the decision awarding custody [Art. 182]. In case of disagreement, the court itself organises the visits and specifies their time and place, to rule out any fraudulent manoeuvre [Art. 182]. It takes into account the circumstances proper to each case, and its decisions in this matter are subject to appeal [Art. 182].
And the child's travel abroad? If the legal representative objects to it, the judge of urgent applications may, at the request of the interested party, authorise the travel [Art. 179]. Two conditions, not one: verify that the travel is occasional in nature, and that the child's return to Morocco is guaranteed [Art. 179].
A parent who fears an unagreed relocation therefore keeps a swift avenue of recourse.
Protecting the child: the role of the public prosecutor's office
The last link, and not the least. The Code does not leave the child alone facing a failing custodian. The father, the mother, the close relatives and any third party must notify the public prosecutor's office — the prosecutor — of any harm to which the child would be exposed [Art. 177].
Why this broad obligation? So that the public prosecutor's office may carry out its duty to protect the child's rights, which includes the possibility of requesting forfeiture of custody [Art. 177]. The court, seised in turn, takes the appropriate measures, up to the withdrawal of the custody right from the person exercising it [Art. 177].
This connects to the duty of upbringing itself: honesty in word and deed, prevention of violence causing bodily and moral harm, protection against any prejudicial exploitation [Art. 54]. When the spouses separate, these duties are apportioned between them in accordance with the rules of custody [Art. 54]. On the death of one parent or both, they are transferred to the person who assumes custody and to the legal representative, according to the responsibility of each [Art. 54].
If you see a child in danger, silence is not a neutral option — it is the opposite of a legal duty.
References
- Article 54 — Family Code (Moudawana, Law No. 70-03)
- Article 164 — Family Code (Moudawana, Law No. 70-03)
- Article 166 — Family Code (Moudawana, Law No. 70-03)
- Article 173 — Family Code (Moudawana, Law No. 70-03)
- Article 175 — Family Code (Moudawana, Law No. 70-03)
- Article 177 — Family Code (Moudawana, Law No. 70-03)
- Article 179 — Family Code (Moudawana, Law No. 70-03)
- Article 180 — Family Code (Moudawana, Law No. 70-03)
- Article 182 — Family Code (Moudawana, Law No. 70-03)
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