Child Custody after Divorce in Nepal: Care, Maintenance and Contact

Child custody after divorce in Nepal concerns where a child lives, day-to-day care, financial support and contact with parents. Read the Civil Code provisions together with the Children Act and the child’s best interests; an age bracket alone does not explain every case.

Custody, parental responsibilities and formal guardianship are related but distinct concepts. This guide focuses on arrangements following divorce or separation.

Process of Child Custody after Divorce in Nepal

The process of child custody after divorce:

Obtain advice on the appropriate court and application for the circumstances. A habeas corpus petition is a distinct remedy and is not interchangeable with every custody claim.

• The defendant is informed about the case by the court.

The response and any related claim follow the applicable procedure and court notice.

• The trial is conducted by the court.
• Evidence is collected, and the best interest of the child is taken into consideration.
• Then the final decision of the court.

• In this case, a minor who has not attained five years of age will be under the custody of the mother if she so wishes. It does not matter whether she has concluded another marriage or not.
• In the case of a minor above five years of age, except in the case of the conclusion of another marriage by the mother, the child will be under the custody of the mother if she so demands.
• In conditions other than the above, the child will be under the custody of the father.
• If there is already a separate agreement between husband and wife about the custody of the child during the time of divorce or judicial separation, then according to such agreement.

For a child who has attained ten years, section 115(3) allows the child’s views to be obtained in the decision described there. Section 115(5) addresses a further separation/maintenance context. Read the subsections separately.

Age-related provisions must be read with the applicable agreement provisions and child-welfare law. Children Act section 16 prioritises the child’s best interests; income alone is not a complete custody test.

If the custodial parent dies, section 115(4) addresses the surviving parent and includes a proviso concerning a remarried mother and a child above five. Obtain advice before applying it to the particular child.

Obligation to take necessary Care and provide Maintenance of the Minor after Child Custody after Divorce in Nepal

• The father and mother shall jointly care for their children for the maintenance, health, education, and sports according to their financial capacity.

Section 116 addresses the responsibilities of the custodial parent and the contribution of a higher-income non-custodial parent for maintenance, education and treatment, by agreement or court determination as applicable.

The right to visit their parents is the right of the children. If the child is living with the mother, he shall have the right to visit his father from time to time.

Section 117 addresses contact by agreement and the relevant court’s role. Its child-interest safeguard can justify restricting contact; contact should not be described as unconditional.

Section 106 contains a rebuttable presumption for a child born after 180 days from marriage.

Section 106 also addresses a child born within 272 days of the husband’s death or divorce. Ordinary separation should not be substituted for the statutory event.

A parentage dispute requires assessment of the applicable law and admissible evidence. DNA testing should not be presented as the automatic or sole basis for every decision.

Parentage and custody are distinct questions. The child’s rights and parental duties should not be reduced to the two date-based presumptions above; section 118 also addresses continuing rights despite marital invalidity or incapacity to marry.

Section 119 addresses when a son or daughter may live separately without parental consent. This is a separate issue from a custody order for a minor and does not authorise unlawful marriage or child labour.

• If he or she is separated from his or her father or mother, with or without attaining partition according to law,
• If he or she has married,
• If he or she is at least twenty-one years of age,
• If he or she is employed.

A useful arrangement addresses the child’s care, education, health, financial support and safe contact. Keep the child’s interests central and seek advice before changing an existing order or arrangement.

Read our article: Divorce Process in Nepal

Official reference: National Civil Code

Official reference: Act Relating to Children