Hanan Harat

Morocco - Since the entry into force of the Moroccan Family Code (Moudawana) in 2004, the principle of the best interests of the child has been one of its most celebrated guarantees for resolving family disputes, particularly in cases of divorce, custody, and alimony. Yet, more than twenty years later, criticism is mounting over the gap between law and practice. In many cases, this noble principle has become nothing more than a beautiful phrase devoid of real meaning.

 

Legal Gaps and Unfair Practices

Attorney Laila Boufrissi explained that several articles of the Family Code suffer from vague wording and lack precise mechanisms to determine the child’s true interests. She said,

 “Custody is often taken away from the mother based on a single report documenting her failure to hand the child over to the father during visitation, without considering the circumstances - she might have been ill, or the child unwell and unable to travel. Yet judges rely on broad discretionary powers that are not well-defined.”

She also pointed out that the visitation system used by Moroccan courts is rigid, usually limited to Sundays from 9 a.m. to 6 p.m.:

 “It is unreasonable to reduce a child’s right to see one parent to a few hours a week, with no possibility of travel, holidays, or even overnight stays.”

Regarding mutual-consent divorce, Boufrissi noted that it often becomes a tool of pressure against women, particularly those in vulnerable economic or psychological conditions:

“Some women are forced to sign divorce protocols under threat or fear of lengthy legal procedures, giving up alimony entirely or accepting symbolic amounts that cannot cover the child’s basic needs.”

 

Anticipated Reform of the Family Code

The issue of the best interests of the child goes beyond the written law and extends to judicial rulings. In July 2024, the Family Court of Marrakech ordered that a four-year-old child be returned to Switzerland, where his father resides, citing the Hague Convention on International Child Abduction. The ruling sparked human rights protests, arguing that it ignored the child’s social and emotional environment after living in Morocco for three years.

 

The ongoing debate on reforming the Moroccan Family Code has brought these issues back to the forefront. Boufrissi called for a clear legal definition of the best interests of the child, mandatory psychological and social assessments in custody and alimony cases, and specialized training for judges in multidisciplinary approaches:

 “A child cannot be protected through a purely legal lens. We must recognize that a child is an independent being with psychological and social needs as vital as their material ones.”

This reality is echoed by Khadija Mohamed (a pseudonym), a mother of a seven-year-old girl who was granted alimony of only 600 dirhams (about $60) per month after divorce. She says:

 “That amount doesn’t even cover food, clothing, or school costs- and worse, the father doesn’t pay regularly, forcing me to take any job I can find to cover expenses.”

This highlights a major issue: the lack of effective mechanisms to enforce alimony rulings, often leaving judgments unenforced and placing the full financial and emotional burden on women.

 

Inconsistent Court Rulings

The problem of defining the best interests of the child is also reflected in inconsistent court decisions. In July 2024, the Marrakech Family Court’s ruling to return a child to Switzerland stirred controversy, as noted earlier.

Conversely, a November 2023 ruling by the Court of Appeal in Midelt marked a positive turning point when it refused to revoke custody from a remarried mother, emphasizing the psychological and social well-being of the child. This decision was hailed as a humane judicial precedent.

In May 2022, the Temara Primary Court issued an urgent ruling granting temporary custody of an infant to the mother, based on medical and social reports warning of the risks of leaving the child with the father. This was seen as a model of judicial responsibility in cases directly affecting a child’s safety.

Such divergent judgments reveal the absence of a unified judicial understanding of the concept of the child’s best interests, leaving children’s fates dependent on judicial discretion—sometimes fair, sometimes not.

 

Outdated Provisions

Political and human rights activist Nouzha Skalli, president of the association Aoual Liberties, stressed that the reform of the Family Code must be comprehensive and profound, placing the best interests of the child at its core. She condemned the persistence of practices such as child marriage, describing it as: “A crime against childhood that contradicts Morocco’s international commitments”.

She also pointed out that the Code almost entirely ignores the rights of children born out of wedlock, who are denied legal recognition of parentage despite available scientific means to establish it. She called this a double injustice, and criticized provisions that automatically strip a mother of custody upon remarriage, asserting that: “Experience shows that children receive more affection and care from their mothers than from any other party.”

 

Skalli further emphasized that the 2004 Family Code has become outdated through practice, still retaining elements from the old Personal Status Code, which was based on patriarchal principles - such as the “ta’sib” system that prioritizes male relatives over wives and daughters in inheritance.

She concluded by saying that any forthcoming reform must embody the spirit of equality and ensure real protection for children and women, free from all forms of discrimination.

Despite two decades since the adoption of the Family Code, the principle of the best interests of the child continues to pose serious practical challenges. Will the upcoming reform finally correct the course and secure genuine protection for children - or will this ideal remain a beautiful legal phrase that keeps clashing with judicial and social realities?