Child custody law in Nepal

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When a relationship ends, and there are minor children from this union, it is important to regularize issues related to them (such as custody). In order to ease this break in the family bond and preserve the children’s well-being. Childcare must fit into the context of that family. In addition, it is imperative that parents be aware that there has been no division of rights and duties in relation to their children. What is extinguished is the affective bond between the couple, and the breaking of this union cannot compromise the relationship between parents and children. Child custody law in Nepal gives the right to a parent to foster, and care for the child after the settlement of their divorce. the Supreme Court of Nepal and the Government of Nepal have set the rules and regulations for the maintenance and proper upbringing of the child after the formal separation of their presents through a divorce.

Types of child custody In Nepal

There are various precedents set for the upbringing of the child by the Government of Nepal and the Supreme Court of Nepal as mentioned earlier. According to the law of Nepal, there are following types of child custody in Nepal:

1. Physical custody Of the Child

Physical child custody means that the parent is responsible for the physical upbringing of the child. the parent who gets the custody right of the child is responsible for the physical well being of the child. the child will live with the parent who has got the physical custody of the child. Subsection 1(ka) of Article 115 f Civil Code 2074, if the child is minor and below the age of 5 years, and if the mother remarries, she still has the right to keep her child with her if she wishes. the other parent that is the father gets the visitation right that is he can visit the child at the time specified by the court. This type of right is given to the mother because the mother is presumed to be the natural and legal guardian of the child under five years of age. If the mother and the minor child below 5 years of age are separated, it may have a negative impact on the young mind of the child.

However, if the child is above 5 years of age and the mother remarries, the father has the right to raise his child. Similarly, if the child is 10 years of age or more, he has the right to choose a parent whom he wants to live with according to his wishes.

2. Legal custody of the child

According to Article 118 of the Civil Code 2074, even if the relationship between husband and wife is severed, the responsibility of father and mother toward their children remain the same. In legal custody, both husband and wife are responsible for taking the important decisions in relation to the betterment of the child. Such as both husband and wife takes the decision together in relation to education, financial support, and health of the child. Not only decision making but the financial and maintenance expense are also borne equally by both the parents. It is clearly mentioned in the law of legal custody of the child. Till the age of 5, the mother has the right to keep her child with her but the father also has to bear the cost of raising the child. Both parents share the same responsibility in the legal custody of the child.

3. Joint custody of the child

According to subsection 2 of Article 115 of Civil Code 2074, if the husband and wife have made the separate arrangement and agreement regarding the child custody at the time of divorce, then the same agreement can be accepted by the court. There are no specific legal provisions mentioned in the Joint custody of the child as both mother and father will be equally responsible for the upbringing of the child. A new concept in relation to the joint custody of the child has evolved which says that both mother and father have the equal right to make the decision for the betterment of the child. The child, therefore, sometimes stays with their father and sometimes stays with his mother so he can get the benefit of having both parents as active members in his life. Usually, in the mutual consent divorce, joint custody of the child is given to both the parents.

4. Visitation Right of the parents

The law of Nepal has protected the right of children to upbringing, education, and health care along with the right of the parents to visit their children. Up to the age of 5 years, the child stays with the mother but the father also has the right to visit his child at the time. Article 117 of the Civil Code 2074 has given the right to the non-custodial parent to visit his child and see if the child has been reared in the right way. That is, if the child is staying with the mother, then the father has the right to visit his child. If the child is staying with the father, then the mother has the right to visit her child. If the visitation right of the non-custodial parent is violated, then the Civil Code 2074 has given the right to the non-custodial parent to file a lawsuit against the custodial parent.

The law and court of Nepal have always looked after the best interest of the child. Article 115 of Civil Code 2074 has clearly stated that even if the mother has remarried, she has the right to keep her child with her if she wishes. However, if the father sees that it is not in the best interest of the child then he can file the lawsuit in the court for the custody of the child. The same goes for the mother. If she thinks that it is not at best interest to keep her child with the father, then she also can file the lawsuit in the court for the sole custody of the child.

 Procedure of getting child custody

Here is the procedure that the parent that is filing the lawsuit can take:

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

If the child is below or up to 5 years of age, and he is staying with his mother. And the mother remarries and doesn’t allow the father to visit his child, then the father can file a case in the relevant district court for the sole custody o the child.

Even if the child is above 5 years of age and he is staying with his mother but the mother is not allowing the father to visit the child, then also the father can file a case in the court.

2. The habeas corpus writ can be placed

A habeas corpus writ is an extraordinary jurisdiction to be filed in a state of unlawful detention. One such habeas corpus writ was filed in the court with Sunita Bista Versus Sameer K.C. under Ne. Ka. Pa. 2070 Ni. Na 8979. Such a case made the court to think and take into consideration the total welfare of the child. Therefore, the court considers many factors in relation to the welfare of the child such as:

• Which family member the child wants to stay with and be happy with?
• With whom the child will be more comfortable with?
• With whom the future of the child will be bright?
• Which parent is more responsible for the right upbringing of the child, for his education, for his health, and for his entertainment as well?

If all these factors are not taken into consideration and the unilateral decision is made favoring one parent only, then the welfare of the child will be in the risk and less productive. Therefore, it is a compulsion that the court to take all these factors into consideration while making the right judgment for the wholesome welfare of the child.

There are numerous cases that are filed in the court as habeas corpus writ. Few examples are given below:

• One such Writ petition was filed by Satyavati Chalise against Vivek Chalise of the same nature under Ne. Ka. Pa. 2061, Asoj, Ni. Na. 7389, page 676. The case stated that the children were staying with the father and the mother was not allowed to visit her children. Except for going to the school, the children were not allowed to go outside or meet their mother and was held inside the house by their grandmother. A habeas corpus writ has been filed by the mother and the court order has been issued to release minors from the control of their father and grandmother and hand them over to their mother, saying the action is illegal.
• Similarly, in the writ petition filed against Atul Shah by Mallika Shah under Ne. Ka. Pa. 2068, Mangsir, Ni. Na. 8674, page 1412, instructions have been issued to both the parties that the father should be allowed to see, meet and communicate his child under the custody of the mother.

Conclusion

Divorce itself is the painful process and when the child custody is involved, then the process can become more painful for both parents and even for the family. Therefore, as much as possible, the child custody should be shared equally between parents and child should be allowed to live with both parents. So he doesn’t miss out on the affection and guidance of both the parents. We here at Divorce Nepal understand this necessity and therefore guide you to the way by which both parents can look after the welfare of the child.