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Custody vs. legal guardianship: a legal balance emptied of meaning in practice

Published on By الجمعية المغربية للدفاع عن حقوق الأب والأبناءAdvocacy

Moroccan law gives custody of the child to the mother and legal representation to the father — a balance meant to keep both parents involved in major decisions. In the cases the association follows, this balance is routinely bypassed: school, passport, leaving the country, without the father's consent. What the law says, and what a father can do to assert his right.

In theory, the Moudawana organises a division of roles between parents after divorce: custody of the child (hadana) goes primarily to the mother, while legal representation (wilaya) — the power to decide on acts that affect the child's future — stays with the father. A balance intended by the legislator so that neither parent is entirely shut out of their child's life. In the cases the association supports, however, this balance is regularly emptied of meaning: a mother who knows how to work the system can change the child's school, obtain their passport, even leave Moroccan territory with them, without the father's agreement — and when he objects, the difficulty in documenting and asserting his right in time rarely lets the process succeed before the fact is already done.

What the law says: two distinct rights, not one against the other

The Family Code clearly distinguishes two notions that are often confused. Custody (hadana) is the day-to-day material care of the child: it goes first to the mother, then the father, then the maternal grandmother (article 171), and applies until the child turns 18, with a 15-year-old able to choose which parent to live with (article 166). Legal representation (wilaya) is a different power: the power to decide, or consent to, acts that affect the child's future — school enrolment or a change of school, issuing a passport, authorisation to leave the country, major medical decisions, managing their assets. This power defaults to the father (article 230), including when the mother has custody after a divorce; she can only exercise it herself in exceptional urgent cases, in the father's absence (article 236), or if he has himself named another guardian by will (article 237).

This division is not a privilege granted to the father against the mother: it is meant to be a safeguard for the child, so that no major decision in their life is made without the agreement of both parents, who both remain responsible for them — a child being the property of neither.

This principle is not specific to Moroccan law: Morocco ratified the UN Convention on the Rights of the Child in 1993, whose article 18 states that both parents have common responsibility for raising the child and ensuring their development — a principle the Moudawana itself echoes in its article 54, devoted to children's rights. On both the international and domestic level, then, a child belongs to neither parent: it is a shared responsibility, which Moroccan law translates precisely through this division between custody and legal representation.

What this means in practice

In practice, this means a change of school, a passport application, or a trip abroad with the child should all require the agreement of the father, as legal representative — the document the administration issues so a minor can leave the country is precisely called a travel authorisation, and in principle it assumes that same agreement. A recent development shows how far this principle has already eroded administratively: since a March 2024 Interior Ministry circular, a mother can obtain or renew her child's passport without the father's authorisation — for now limited to the Kingdom's consular services abroad, but a clear signal of the direction administrative practice is taking, regardless of what the law itself still requires within the country.

When this right is emptied of meaning

In the cases the association follows, it is the mothers most familiar with administrative channels who most easily manage to act alone: changing the child's school, obtaining a passport, sometimes leaving Moroccan territory with them, without ever obtaining the father's consent. When he objects or files a complaint after the fact, the difficulty is not proving he has a right — the law clearly recognises it — but gathering proof of the overreach in time and bringing the matter to court before the situation becomes irreversible: a child already enrolled elsewhere, already gone. The time a civil procedure takes, during which the child grows up with nothing settled, works objectively against the father, whatever the merits of his case.

This needs to be said clearly: this is not about fathers who are indifferent to their children — the association does not defend them and never has. This is about fathers who want to remain present in their children's lives, and for whom any major change — a school, a country, a passport — must stay a joint decision, precisely because a child is the property of neither parent, but the responsibility of both. Each has a boundary of rights set by law; overstepping it must have a consequence, so it does not happen again.

The school example: when custody stands in for legal representation

School is one of the places where this imbalance plays out most concretely, day to day. In several cases the association follows, a school comes to treat custody (hadana) as if it also carried legal representation (wilaya) — whether through genuine unfamiliarity with the law, or because it simply follows the instructions of whichever parent has the child day to day. A father who is the legal representative, though entitled to follow his child's schooling, see him at pick-up, or be informed of anything that concerns him, is then refused entry to the school on the director's instruction — even though no court ruling has stripped him of that right. Having a bailiff formally record the refusal establishes the facts, but does not restore access on the spot: the matter still has to go before a judge for anything to follow, and that procedural delay, as with a change of school or a departure abroad, works against the father and against the child — whose bond with both parents should never depend solely on the wishes of whichever one has them day to day.

What a father can concretely do

  • Before any risk of departure, ask the family judge for an order banning the child from leaving the country, notified to the border authorities — a preventive measure to request before the fact, not after.
  • Systematically document his status as legal representative (article 230) and notify the relevant administrations in writing (the school, the passport office) as soon as a change is made without his agreement.
  • If the mother obstructs his visitation rights in retaliation, bring the matter to the family court judge on the basis of article 184, which allows custody to be withdrawn from a parent who obstructs the other's exercise of visitation rights.
  • Document every overreach with any available evidence, so a coherent case file can be presented to the judge instead of scattered facts that are hard to establish after the fact.
  • If the mother nonetheless leaves the country with the child, or afterwards cuts off all contact between him and his father, the situation joins what the association has already covered in its article on repeat offences of non-presentation of a child: the same evidentiary requirements, the same steps to take without delay.
  • If a school refuses him access or any information about his child's schooling despite his status as legal representative, report it in writing to the school management and to the regional education authority (AREF), citing article 230, and have the refusal formally recorded by a bailiff if it continues.

What needs to change

A Moudawana reform project currently under review would establish co-guardianship by default, allowing a custodial mother to act without prior authorisation for everyday matters — and could, once enacted, address part of the problem for mothers acting in good faith who today run into an absent or unreachable father. But sharing responsibilities cannot run one way only: as long as the law sets a balance between custody and legal representation, both parents must respect it, and every overreach must be sanctioned so it does not happen again. Pending a reform that genuinely rebalances both parents' rights, the association is asking for a simple principle: default, equal co-parenting rights for mother and father alike.

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