Child Custody Law in Nepal

There are various form of custody arrangements: joint custody, physical custody, and legal custody. Custody is related to divorce, in which the divorced parents reach agreement on parenting plans

The Government of Nepal and the High Court have issued a number of orders concerning child custody.

The court considers a number of factors while issuing a child custody order that puts the “Best Interest of the Child” at the heart of its decision.

1. Physical custody of children:

Physical custody refers to the children’s home custody; determines with whom the child lives after a divorce. The non-custodial parent has the right to visit.

The child lives with a parent who is granted physical custody pursuant to a court order. Article 115 1(a) of the National Civil Code, 2017, provides that if the child is under 5 years of age, and if the mother is married to someone else, she is entitled to nurture the child if she so wishes.

The idea is to allow children to maintain a healthy relationship with both parents. While they are growing up, thereby granting the mother the right to physical custody.

If the child is over 5 years of age and if the mother is married to someone else, then the father has the right to nurture the child. If the child is over 10 years of age, then the child has the right to choose his or her guardianship.

2. Legal custody of the child:

Article 118 of the National Civil Code 2017 sets out the duty of parents to protect their children even after divorce. Legal custody sets out the rights and responsibilities of parents with regard to their children’s education, health care, finance and parenting plans.

Both parents share the decision-making process for their children, and both parents are equally responsible for the maintenance of their children.

The legal custody document will contain provisions for the nurturing and future study of their children. Mother has the right to nurture the child until she is 5 years old, but the father will have to take care of the expenses in a mutual way. Both parents shall have the right to nurture and legal custody of the child.

3. Joint custody of the child:

Article 117(2) of the National Civil Code 2017 provides that, while the husband and wife are divorced or are in the separation process, custody of the child is a separate decision-making process that is carried out in compliance with the law. There are statutory rules for the joint custody of a child.

A new concept of joint custody is emerging at the moment. The court has granted joint custody in divorces by mutual consent. Children can enjoy the care and love of their parents just as much as they participate in the life of their children.

4. Right of visitation

The law has ensured the protection of children with regard to their rights in nursing, education and healthcare. Equally, the parental visitation rights have been ensured when considering the important factors.

Right to parental care remains with the mother until the child is 5 years old, while the father enjoys the right to visit. Article 117 of the National Civil Code, 2017, states that if the child lives with the mother, the father can visit the child and if the child lives with the father, the mother can visit the child.

The 2017 National Civil Code sets out the provisions for children   rights. With regard to the parental care of a child, the court has provided special care for the needs of the child. 

Article 117 of the National Civil Code, 2017 affords the custodial right of a child’s mother even if she is married to someone else if she wants to do so. If the best interest of the child is undermined while living with a mother, then a petition for adjustment or a petition of modification can be brought before the court of law.

5. The petition submitted to the District Court for child custody:

If the child is older than 5 years and the mother keeps a marital relationship with another man and a father is deprived of the right to Parental care then, under such circumstances, the father may file a custody order before the relevant court. In the event of a visitation right denied, a visitation petition may be brought before the district court.

6. Order of the Habeas Corpus may be sought:

The order of the Habeas Corpus means the restriction of the child. This constitutes a violation of the freedom of movement. The child is detained by limiting movement. The habeas corpus order allows a child to appear before the judge.

7.Joint Custody in Divorce

The National Civil Code, 2017, provides for custody of the child after the divorce process is completed. The Law of Nepal grants the sole custody in compliance with the law. The laws of Nepal do not mention about joint custody. It can, however, be obtained by the conclusion of the agreement after the divorce process has been concluded.

These days, clients are inquiring about joint custody as a common practice around the globe. This practice is used to inform clients about the agreement by which the child can be placed under joint custody and can be provided with parental care.

Joint custody is appropriate custody so that both parents have equal participation in the life of the child. The court shall decide on the best means of parental care in the best interests of the child and, as such, shall grant joint custody. Traditional arrangements for joint custody

1. Determination of stay

The application for joint custody shall be made at the time of the divorce proceedings, where the parenting plans are mutually agreed and are set out in the agreement. It clearly states that the mother is a custodial parent until the child is 5 years old. When the child reaches 10 years of age, the father can have parental care.

2. Not affecting current privileges

At the time of the divorce proceedings, the psychological state of the child must be taken into account. The best interests of the child, the growing environment of the child must be taken into account that helps him/her enjoy a healthy relationship with his/her parent.

Children are simply not their property. Children should not be deprived of their right to a healthy environment. It is of the highest concern for children to have both parents participate in their lives as they grow up.

3. Best interests of minor children

While raising the child, his/her best interests must be taken into account

A child should be allowed to grow up in a common family until it has proven otherwise.

The common families include the Grandpa and Grandma. Parenting plans should involve the joint family. The child will grow up if there is no imminent harm to the child.

4. Parental care sharing

Parents can agree to raise the child by dividing the duration of the stay. For example, a child can stay with a mother for a week or a week with a father. This allows the child to establish ties with both parents while growing up.

5. Avoid using children as a weapon in divorce proceedings

The husband demands child custody to save the alimony allowances in most situations.

Alimony allowances that is provided to the child’s mother in the event of custody granted to the mother. During the course of divorce, the husband attempts to use child custody as a tool to trick the wife to withdraw criminal charges and retract maintenance requests.

In certain cases, the husband wants child custody to save the alimony allowances. Alimony allowance given to the mother of the child in the case of custody granted to the mother.

The husband tries to use child custody as a tactic during the process of divorce to trick the wife to drop criminal proceedings and retract maintenance demands.

Doing so may have a negative effect on children. So Decide purely on the basis of the best interests of the child, in such a way that the child is given the opportunity to grow up in a healthy environment.

6. Child support or Child Maintenance

The issue of child support arises from the fact that both spouses live apart. The husband and the wife are permitted to live with or without a divorce.

The request for custody of the child must be made to the municipality or district court in a situation where the husband and wife live apart.

In divorce, the child has two types of parents, one custodial parent, and one non-custodial parent. If the non-custodial parent has a higher income, the other custodial parent must pay. Child support shall include financial assistance.

Child support is the predetermined amount of the allowance calculated during the divorce period. It is generally paid monthly to a spouse who has primary custody of the child.

A procedure for obtaining child support

1. Application in the municipalities and district courts

If you wish to submit an application for divorce and ancestral property claim you will then have to submit an application for a child’s support amount. In the event of a divorce and an ancestral property claim, the application for child support money must be made before the municipality of your residence.

The court charges court fees for filing such applications, however, if the applicant is able to obtain a letter of recommendation stating the low economic status of the applicant, the court may temporarily waive the fee for making such an application.

2.  Issue of the summons and the notices

If the non-custodial parent is living in a different place, the court or municipality shall give a notice of 7 days which shall serve as a notice to the other parent of the child benefit claim. Upon receipt of the summons, the other non-custodial parent must attend a mandatory court hearing to determine whether or not they are responsible for child support payments.

3. Calculation of allowances

The court and the municipality consider several factors in the calculation of the amount of child support. The variety of information is documented in order to understand the income of the parents, their lifestyles, before the child support allowance is granted.

They must take into account the income of the parents, the number and age of the children living at home, the basic living expenses and the school fees. If a child has special needs, such as treatment for serious illness or disability, these costs may also be taken into account.

The Court and the Municipality issue immediate relief orders for child support allowances. The Child Support Order shall include specific items for the child, such as education, day care and health care.

In some cases, non-custodial parents may be required to pay those expenses directly. They can, for example, pay school fees directly to their child’s school, instead of giving money to the custodial parents for the school.

Child support is of the utmost importance during the divorce proceedings.

The child must not be deprived of basic rights to grow. An experienced expert lawyer MUST be consulted who weighs the pros and cons of divorce and puts the best interests of the child at the heart of the matter. We provide you with the best service that suits your case type at an affordable price.

Should you have any questions please do not hesitate to contact us.