In Nepal, child custody issues primarily arise in the context of divorce or separation, where parents need to determine arrangements for the care and upbringing of their children. The law emphasizes the “best interest of the child” as the guiding principle in making custody decisions.
Types of Custody Arrangements:
Joint Custody:
Both parents share responsibility for the child’s upbringing, making collaborative decisions about their welfare, education, and health.
Physical Custody:
The child mostly lives with one parent, who is in charge of day-to-day care.
Legal Custody:
The youngster lives mostly with one parent who is responsible for daily care.
Custody and Divorce:
Custody arrangements are often determined during divorce proceedings, where divorced parents reach an agreement or the court issues orders based on various considerations.
Parents may agree on parenting plans, which outline custody, visitation rights, and responsibilities.
Legal Framework and Orders:
The Government of Nepal and the High Court have set rules and directives for child custody that prioritize the kid’s wellbeing.The courts have the authority to grant custody and establish visitation rights, ensuring the child’s best interests are prioritized.
Factors Considered by the Court:
- When issuing a child custody order, Nepalese courts consider multiple factors, including:
- The child’s age, sex, and preferences (if of sufficient maturity).
- The mental and physical health of the parents.
- The child’s ties to each parent and the environment.
- Parental ability to provide suitable medical attention, education, and emotional support.
- The stability and safety of the living environment.
- The child’s own wishes, particularly if they are old enough to express a reasoned preference.
- Principle of “Best Interest of the Child”:
- The core criterion in custody decisions is ensuring the child’s overall well-being and development.
- Courts strive to create a nurturing, stable, and supportive environment that promotes the child’s emotional and physical development.
Summary:
In Nepal, child custody arrangements are designed to serve the child’s best interests, with courts carefully evaluating various factors before issuing custody orders. The law recognizes different forms of custody—joint, physical, and legal—and emphasizes the importance of a stable and caring environment for the child’s welfare.
Physical Custody of Children in Nepal
Definition and Significance:
Physical custody refers to the child’s residence and day-to-day care—determining with whom the child lives after a divorce or separation. The parent with physical custody is responsible for the child’s living circumstances, while the non-custodial parent has the right to visitation.
Legal Provisions:
The child’s physical custody is awarded through court orders, ensuring the child’s best interests are prioritized. According to Article 115(1)(a) of the National Civil Code, 2017, specific provisions relate to the custody of children under certain age groups:
Children under 5 years of age:
If the child is below 5 years and the mother is married to someone else, the mother has the right to nurture and care for the child if she wishes. This provision emphasizes the importance of maternal care during early childhood, especially for very young children.
Children over 5 years of age:
When the child reaches the age of five and the mother is married to someone else, the father normally has the right to nurture and care for the child, recognizing
Children over 10 years of age:
Once the child reaches 10 years or older, the child’s own preference becomes a significant factor. The child has the right to choose their guardian or custodian, reflecting respect for the child’s autonomy and maturity.
Policy and Philosophy:
The overarching idea is to promote a healthy relationship with both parents, fostering emotional bonds and stability.
The law aims to ensure children grow up in safe, nurturing environments and maintain meaningful relationships with both parents whenever possible.
The provisions recognize the different needs of children at various developmental stages, balancing maternal care in early childhood with paternal involvement as children grow older.
Visitation Rights:
The non-custodial parent retains the right to visit and spend time with the child, ensuring ongoing contact and emotional connection.
Summary:
In Nepal, physical custody decisions are guided by the child’s age, the marital status of the mother, and the child’s own preferences when they are sufficiently mature. The legal framework seeks to balance the child’s safety, emotional needs, and relationships with both parents, with the child’s best interests at the core.
Article 118 of the National Civil Code 2017 requires parents to protect their children following divorce. Legal custody establishes parents’ rights and obligations for their children’s education, health care, finances, and parenting plans.
Both parents have decision-making authority over their children, and both parents are equally responsible for their children’s well-being.
The legal custody agreement will include provisions for the nurturing and future education of their children. The mother has the right to care for the child until she reaches the age of five, but the father must share expenses. Both parents must have the right to care for and legal custody of their kid.
Joint custody of the kid:
According to Article 117(2) of the National Civil Code 2017, custody of the child is handled separately and in accordance with the law during divorce or separation proceedings. There are statutory laws governing shared custody of a kid.
Evolving Concepts of Joint Custody and Visitation Rights in Nepal
Joint Custody:
- Joint custody is a novel notion gaining traction in Nepal, with the court granting it in cases of divorce by mutual consent.
- Joint custody agreements provide children with the love, care, and participation of both parents, establishing a balanced and supportive environment.
- This method emphasises shared responsibility and involvement, ensuring that children keep close relationships with both parents even after separation or divorce.
Right of visitation:
Legal Provisions and Principles:
The law protects children’s rights throughout their upbringing, such as access to nursing, education, and healthcare.
Parental visitation rights are recognised as critical to sustaining the child’s relationship with the non-custodial parent, based on a variety of circumstances.
Specific Rights Based on Age and Residence:
Legal Provisions and Principles:
The law protects children’s rights throughout their upbringing, such as access to nursing, education, and healthcare.
Parental visitation rights are recognised as critical to sustaining the child’s relationship with the non-custodial parent, based on a variety of circumstances.
Specific Rights Based on Age and Residence:
Until the youngster turns five years old:
- The woman retains the right to parental care. The father has the right to visit and see the child, which ensures ongoing contact.
If the child lives with their mother: - The father might continue to be involved in the child’s life by visiting him.
- If the child lives with their father:
- The mother has the right to visit and spend time with her child.
Legal Framework (Article 117, National Civil Code of 2017):
- The law allows the mother custodial rights even if she is married to someone else, as long as she chooses to exercise them.
If the child’s well-being is jeopardised, the court may intervene and grant requests for custody alterations or revisions. - The court prioritises the child’s best interests. If residing with the mother jeopardises the child’s wellbeing, the court might hear petitions for custody modification or adjustment.
Protection of Child Rights:
The law emphasises the need of providing specialised care based on the child’s needs.
Petitions and Court proceedings:
If the child is over 5 years old and the mother is in a new marital relationship, the father may file a custody petition in district court if he is deprived of parental care rights.
If visitation rights are refused or hindered, petitions may be brought in district court to enforce them.
Summary:
Nepal’s legal structure is growing to include joint custody as a shared obligation, which promotes the child’s best interests. The law precisely defines visitation rights based on the child’s age and domicile, ensuring ongoing parental engagement. Courts have an important role in upholding these rights and making custody decisions that prioritise the child’s wellbeing, allowing for petitions and revisions as needed to protect their rights and well-being.
Order of Habeas Corpus in Child custody Cases
Definition and purpose:
Habeas Corpus is a legal remedy for challenging an unlawful detention or constraint of a person, including a child.
When a child’s freedom of movement is restricted, such as being detained or held against their will, a Habeas Corpus order can be obtained.
This order orders the person holding the child to bring the child before the court so that the judge can assess the child’s wellbeing and make suitable custody arrangements.
Thus, Habeas Corpus serves as a protection to protect the child’s right to liberty while also ensuring that detention is lawful.
The significance of child custody:
It is utilised when there is suspicion or evidence that a kid is being illegally incarcerated,
The significance of child custody:
It is utilised when there is suspicion or evidence that a kid is being wrongfully imprisoned or restricted.
The court may require the child’s appearance to investigate custody concerns, particularly in disputes or situations of improper imprisonment.
Joint custody in divorce under Nepalese law.
Legal Framework:
The 2017 National Civil Code generally provides for sole custody of children following divorce, with custody granted to one spouse based on the child’s best interests.
Nepalese legislation does not clearly recognise shared custody as a distinct legal category.
Post-Divorce Agreements:
Despite the lack of express legal recognition, joint custody can be established through mutual consent between the parents following the conclusion of divorce proceedings.
The court may recognise or ratify such agreements that are created peacefully and in the best interests of the kid.
Global and Modern Practices:
International trends and customer enquiries indicate that joint custody arrangements are becoming increasingly popular around the world.
Joint custody permits both parents to participate equally in their child’s life, including decision-making and caregiving tasks.
Courts are increasingly ready to grant joint custody where it is in the best interests of the kid, particularly when both parents cooperate.
Traditional arrangements:
Although not required by law, conventional joint custody arrangements frequently include shared physical custody and collaborative decision-making, which are formalised through mutual agreements or court decisions.
Summary:
Habeas Corpus is an important legal instrument for protecting a child’s liberty and ensuring lawful detention or constraint is challenged in court.
While Nepal’s Civil Code of 2017 emphasises sole custody, joint custody is increasingly being recognised through post-divorce parenting arrangements.
Courts prioritise the child’s best interests and may give shared custody when it enhances the child’s well-being, reflecting changing practices that are in line with international standards.
Determination of stay and custody arrangements
Application for joint custody:
Requests for shared custody are often made throughout the divorce process.
The parenting plan should be jointly agreed upon and formalised in an agreement.
The law or court may define temporary custody arrangements depending on age and best interests.
Until the child turns five years old, the mother is traditionally considered the custodial parent.
When the child reaches the age of ten, the father may be allowed parental care based on the child’s evolving needs and preferences.
Consider the Child’s Well-Being:
During divorce procedures, the child’s psychological status must be thoroughly assessed.
Custody decisions should be based on the child’s best interests and their growing environment.
The child’s right to a safe and nurturing environment must be protected.
It is emphasised that children are not property, and they have the right to have meaningful relationships with both parents.
Custody decisions are based on the best interests of the minor kid.
A child should ideally grow up in a shared family setting, unless there are compelling reasons to the contrary.
Extended family members, such as grandparents and other relatives, can assist in caregiving, emphasising the necessity of joint family involvement.
As long as there is no urgent danger, the child should be raised in a shared family setting that promotes stability and emotional well-being.
Summary:
Custody arrangements, including joint custody, are best set during the divorce proceedings, taking into account the child’s age and maturity.
The child’s psychological health, growing environment, and family engagement are all important aspects.
The overriding premise is to serve the child’s best interests by ensuring that they grow up in a supportive, healthy, and inclusive environment that includes both parents and extended family, where appropriate.
Parental Care Sharing
Parents can agree to share the child’s time between them.
For instance, the child could spend one week with his mother and the following with his father.
Such agreements allow the child to keep strong relationships with both parents and have a balanced upbringing.
Such arrangements should promote the child’s emotional and psychological well-being while ensuring continuity and consistency.
Avoiding children as a tool in divorce proceedings
Children should not be used as leverage in custody battles to affect other legal issues.
Impact on children: Such techniques disregard the child’s best interests and might cause emotional distress.
Principle: Custody decisions should be made exclusively in the child’s best interests, ensuring that they grow up in a healthy, supportive environment devoid of legal manipulation.
Child Support or Child Maintenance?
Legal Framework:
When spouses live apart, whether during or after divorce, they are still financially liable for the child.
Child support requests are addressed to municipal or district courts.
Custody and Support responsibilities:
In custody cases:
There are two kinds of parents.
Custodial parent (provides primary care)
Non-custodial parent (who does not receive primary care)
If the non-custodial parent has a larger income, they are usually obligated to pay child support.
Common Misuse:
The husband may seek custody primarily to save on alimony payments.
Custody awarded to the mother frequently results in alimony payments to her.
Manipulative strategies could include:
The husband is seeking to persuade his wife into dropping criminal proceedings.
Custody was used as a negotiating tool to withdraw maintenance requests.
Impact on children: Such techniques disregard the child’s best interests and might cause emotional distress.
Principle: Custody decisions should be made exclusively in the child’s best interests, ensuring that they grow up in a healthy, supportive environment devoid of legal manipulation.
Child Support or Child Maintenance?
Legal Framework:
When spouses live apart, whether during or after divorce, they are still financially liable for the child.
Child support requests are addressed to municipal or district courts.
Custody and Support responsibilities:
In custody cases:
There are two kinds of parents.
Custodial parent (provides primary care)
Non-custodial parent (who does not receive primary care)
If the non-custodial parent has a larger income, they are usually obligated to pay child support.
Child Support Payments:
Are cash gifts to help meet the child’s requirements.
During divorce procedures, they are typically computed as a predetermined monthly stipend.
Custody-based parents receive cash to aid them with bringing up children expenses.
Summary:
Shared parental care strengthens the child’s relationship with both parents.
Custody-based parents receive cash to aid with parenthood expenses.
Custody and support choices must prioritise the child’s best interests while avoiding manipulative tactics.
Child support is a required obligation to ensure the child’s well-being while parents live apart, and the amount is established by income and custody agreements.
Procedure for obtaining child support.
Application to Municipalities and District Courts
To request child support, you must file an application either during or after your divorce.
If you are suing for divorce or claiming ancestral property, you should file a child support application with the court in your municipality of residence.
The court charges fees to process the application. However, if the applicant can present a letter of recommendation indicating low economic status, the court may temporarily waive the expenses.
It is advisable to gather all required papers and evidence of income to support your application.
Issuing Summons and Notices
If the non-custodial parent resides elsewhere, the court or municipality will send them a 7-day notice of the child support demand.
The notice acts as official communication, requiring the non-custodial parent to react.
Upon receipt of the summons, the non-custodial parent is required to attend a court hearing.
The hearing’s objective is to determine if they are responsible for paying child support and to establish the amount.
Calculate Allowances
To calculate the proper amount of child support, the court and municipality consider a variety of factors:
- Parental income
- Number and age of children
- Basic living expenses (such as housing and food)
- School fees
If the child has exceptional needs (such as illness or handicap), more fees are incurred.
The court provides a Child Support Order that defines which expenses are reimbursed, including:
- Education
- Day Care
- Healthcare
In some circumstances, the non-custodial parent may have to pay expenditures directly.
For example, paying school fees straight to the school rather than donating money to the custodial parent.
The process starts with submitting an application to local courts or municipalities.
The non-custodial parent is notified and must attend a hearing.
The amount of assistance is carefully evaluated based on financial and personal circumstances.
The court gives a written order outlining the support requirements, ensuring that the child’s needs are met efficiently.
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Ms. Advocate Alpana Bhandari is the CEO of Divorce Lawyer Nepal. She focuses her practice on all elements of family law, including divorce, custody, and property division. She advises prospective clients on, among other things, foreign direct investment (FDI), planned investments, joint ventures, and corporate and individual legal counsel on business establishment, business purchase, sales, contract review, contract drafting, share transfer, and company agreements.