A child below the age of five years will be under the custody of the mother, and a child above 5 years of age will be under the custody of the father if the mother concludes another marriage as per the legal provision of the child custody after divorce in Nepal.
The article will help you to know all the information regarding child custody after divorce in Nepal, with its legal provisions.
Child custody refers to a court’s decision on who should have legal and physical responsibility for a child. Divorce and child custody issues are becoming increasingly common in Nepal, a country where marriage is highly cherished and symbolizes strong bonds between spouses.
This rise in divorce rates has led to concerns about the impact on children and families. In Nepal, divorce and child custody require legal approval, involving various authorities and court processes.
Table of Contents
Types of Child Custody in Nepal
Physical Custody
Physical custody means a parent has the right and responsibility to take care of the child every day and to have the child live with them. According to Subsection 1(a) of Section 115 Civil Code 2074, if the child is a 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.
According to Subsection 1(b) and (c) of Section 115 of the Civil Code, 2074, if the child is over five years old, they will be under the custody of their mother unless she gets married again. In that case, she can choose to have custody of the child. If not, the child will be under the protection of the father.
Legal Custody
In legal custody, both husband and wife are equally responsible for making important decisions about the betterment of the child. According to Section 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 remains the same.
Joint Custody
When both parents of the child have equal rights to the child’s medical and educational records. According to subsection 2 of Section 115 of the Civil Code, 2074, if the husband and wife agree on who should have custody of the child when they get divorced, the court can accept that agreement.
Visitation Rights
The legal right given to a separated or divorced parent to see a child in the other parent’s custody. According to Section 117 of the Civil Code, 2074, the non-custodial parent has the right to visit their child to ensure they are being raised properly. So, if the child lives with the mother, the father can visit, and if the child lives with the father, the mother can visit.
Child Custody after Divorce in Nepal – Whole Process
- A person can initiate a legal process by filing a case in the district court to seek custody of the child.
- If a child is 5 years old or younger and lives with their mother, but she remarries and doesn’t let the father see the child, the father can go to the district court to ask for sole custody of the child.
- Even if the child is older than 5 and lives with their mother, but she still doesn’t let the father visit, he can also go to court to seek help.
- The Habeas Corpus writ can be placed. Habeas corpus proceedings are a way for the court to decide who should have custody of the child. It is an extraordinary jurisdiction to be filed in a state of unlawful detention.
Conclusion
Child custody after divorce in Nepal is one of the important things to consider in a divorce. It’s important for both parents to have custody or to have rights so the child can have the love and support of both. Children are sensitive and need guidance, so it’s crucial to make sure they have the right guardianship. They should also be protected from their parents’ divorce process.
Custody should be given to the parent who can provide the best environment for the child’s growth and well-being. Child custody after divorce in Nepal is an important concept that is growing with the increase in the divorce rate in Nepal.
FAQs
Why do most women get custody of children?
Although we are moving towards gender equality in child-rearing roles, there are still more cases in which parents agree to a parenting plan in which the children spend more time in the care of their mothers. And the law has been made accordingly.
Can a child choose whom they want to live with after the divorce of their parents?
According to the Nepalese legal provision, a child below 10 years cannot decide, but a child above 10 years can decide with whom to live.
Generally, when determining custody of a child above 10 years, the court must take the child’s preference into account, but the court may decide in the best interest of the child. Child Rights Convention, 1989, and the Act relating to children have a provision about the best interests of the child.
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