Child Custody Law in Nepal- Easy Guide to Latest Legal Provisions (2081)

This article will guide you through detailed legal provisions regarding child custody law in Nepal.

What is Child Custody?

Custody simply refers to the legitimate right or obligation to take hold of or care for someone or something. Child custody therefore, is a court made decision or mutually agreed decision between parents regarding where and with which parent the child will live especially upon his parent’s separation or death. The parent who has custody has authority to keep the child with him/herself or make other decisions for his or her child. Custody maybe either legal custody or physical custody.

Child Custody Law in Nepal

The issues relating to Child Custody Law in Nepal is regulated mainly by Muluki Civil Code, 2074 in Nepal.

Child Custody Law in Nepal Upon Divorce

The child  remains in the custody of the mother or the father as provided herein below:

(a) In the case of a minor who has not attained five years of age, under the custody of the mother, if she so desires irrespective of whether or not she has concluded another marriage,

(b) In the case of a minor above five years of age, except where the mother has concluded another marriage, under the custody of the mother, if she so desires,

(c) In the circumstance other than that referred to in clause (a) or (b), under the custody of the father.

But if the husband and wife have entered into a separate agreement on the custody of a minor at the time of divorce or judicial separation, whatever the agreement says will apply to the custody of the minor.

If the minor is above ten years of age, the opinion of the concerned minor may also be obtained.

In Case of Death of Parent Holding the Custody

As per the child custody law in Nepal, If the mother or father, under whose custody a minor is living, dies, the surviving father or mother shall take the minor under his or her custody without any delay. However, if the mother has already concluded another marriage, she is not obliged to take a minor above five years of age under her custody.

Maintenance, Education and Health Care of the Child

According to prevailing child custody law in Nepal, The maintenance, education and heath care of such a minor shall be according to the agreement concluded (if any agreement done in that respect )

In the absence of such an agreement, it shall be as follows:

(a) In the case of a minor below five years of age, the minor shall be under the mother’s responsibility

(b) In the case of a minor who is of five years of age or above five but below ten years of age, under father’s responsibility.

(c) In case of a minor having attained ten years of age, under the mother’s or the father’s responsibility, with whom the minor desires to live.

But if the income of the father or mother who does not take the custody of a minor is higher than that of the father or mother who takes the custody of the minor, such a mother or a father shall provide such a minor with such expenses, for the purpose of maintenance, education and treatment of the minor, as agreed upon between such father and mother and in the absence of such agreement, as specified by the court.

Visitation Rights

In cases where matrimonial relationship is extinguished or the mother or father are living separately in accordance with law, the minor shall be allowed to visit, from time to time, the father if he or she is living under the mother’s custody and the mother if he or she is living under the father’s custody, or with the consent of the mother and father, to stay with either of them for some time.

However, if it appears that the interest of the minor is likely to be prejudiced (affected negatively) while allowing such visit or stay, the court may issue an order prohibiting such visit or stay.

The frequency of visit, or the period of stay shall be as fixed by the concerned mother and father and in the absence of such fixation shall be as ordered by the court.

Legal Ways for Obtaining Child Custody

If the parent taking the custody of child does not take adequate care of the child, affects the interests of the child in any way or if the mother remarries, following legal measures can be taken to obtain the custody of the child.

1. A case can be filed in the district court to get custody of the child

2. The habeas corpus writ can be placed

Rights of Son and Daughter Remain to Exist Even After Divorce of Parents

Even if the matrimonial relationship between the husband and wife is extinguished the legal rights of the son, daughter born from their father, mother and the obligation of the father, mother shall remain in existence.

Also, In spite of the father and mother are later found to be legally incapable of becoming husband and wife in accordance with existing laws, the legal rights of the son, daughter born from them shall remain in existence.

Also read, Birth Registration in Nepal.

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