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Of all the legal issues in a divorce, child custody is the most emotionally charged — and the one where Nepal law is most specific. The Muluki Civil Code 2074 (Sections 114–118) establishes clear age-based rules for custody, legally protected visitation rights, and mandatory child maintenance until age 18. The court's overriding principle is always the best interest of the child — not the parent's preference. Whether you are going through a mutual consent or contested divorce, understanding these rules before you enter a courtroom is essential. If custody is a concern in your case, speak with a family law lawyer immediately.
Child custody laws in Nepal are governed by Sections 114–118 of the Muluki Civil Code 2074. Children below 5 stay with the mother. Children aged 5–10 stay with the mother unless she remarries and declines. Children above 10 can choose which parent to live with. Both parents retain joint parental responsibility after divorce, and maintenance continues until the child turns 18.
Our court marriage lawyers have handled 2,000+ cases — including complex custody and cross-border family matters.
Legal Framework for Child Custody in Nepal
Child custody in Nepal is governed by multiple laws that work together to protect children's rights:
| Law | Key Provisions |
|---|---|
| Muluki Civil Code 2074 (Sections 114–118) | Primary custody rules: age-based allocation, parental responsibility, visitation, maintenance obligations |
| Children's Act 2075 (Bal Ain) | Comprehensive child rights framework — defines "best interest of the child" standard, right to education, health, and protection from exploitation |
| Constitution of Nepal 2072 (Article 39) | Fundamental rights of children — right to identity, family care, non-discrimination, and protection from harmful practices |
| District Court | Court of first instance for all custody disputes in divorce proceedings |
The "best interest of the child" standard is the overriding principle in every custody decision. This means the court considers the child's welfare above the wishes or convenience of either parent. For the full legal framework of divorce in Nepal, read our pillar guide on divorce law in Nepal.
How Courts Decide Custody in Nepal
Nepal uses a structured, age-based system for determining child custody after divorce. The default rules under Section 115 apply when parents cannot agree — but parents can also negotiate their own arrangement, which the court will approve if it serves the child's best interest.
Default Custody Rules (Section 115)
| Child's Age | Custody Rule | Legal Basis |
|---|---|---|
| Below 5 years | Mother has custody — even if she remarries | Section 115(1)(a) |
| 5 to 10 years | Mother retains custody; if she remarries and does not wish to keep the child, custody transfers to father | Section 115(1)(b)–(c) |
| Above 10 years | Court considers the child's own preference on which parent to live with | Section 115(3) |
If parents mutually agree on custody arrangements, their agreement takes precedence over the default rules (Section 115(2)). The court only applies the default system when parents cannot reach an agreement.
Factors the Court Considers Beyond Age
While age is the primary factor, the court also evaluates:
- Parent's financial capacity — ability to provide food, shelter, education, and healthcare
- Moral character — history of domestic violence, substance abuse, or criminal behaviour
- Existing bond with the child — which parent has been the primary caregiver
- Living environment — stability of home, neighbourhood safety, proximity to school
- Willingness to facilitate contact — whether the custodial parent will support the child's relationship with the other parent
- Child's health and special needs — medical conditions that require specific care
Custody for Children Under 5 Years
For children below 5, Nepal law strongly favours the mother. Under Section 115(1)(a), the mother receives custody even if she remarries. This is a significant protection — under the old Muluki Ain, mothers who remarried frequently lost custody.
The father can challenge this default only if he can prove that the mother is:
- Unfit to care for the child — severe mental illness, substance abuse, or neglect
- Endangering the child — physical abuse, exposure to harmful environments
- Absent or disappeared — unable or unwilling to take custody
The burden of proof falls on the father — the court presumes the mother is the appropriate custodian for children under 5 unless clear evidence shows otherwise.
Custody for Children Aged 5 to 10 Years
For children aged 5–10, the mother retains custody under Section 115(1)(b). However, there is one exception:
- If the mother remarries and does not wish to keep the child, custody transfers to the father (Section 115(1)(c))
- If the mother remarries but wants to keep the child, she retains custody
This is an important distinction from children under 5 — for the under-5 group, the mother keeps custody regardless of remarriage. For the 5–10 group, remarriage creates an option (not an obligation) for custody transfer.
Custody for Children Above 10 Years
Once a child turns 10, the law gives significant weight to the child's own preference (Section 115(3)). The court interviews the child — typically in a private session without the parents present — to determine where the child wants to live.
The child's preference is not absolute. The court still considers:
- Whether the child has been influenced or coached by one parent
- Whether the preferred parent can actually provide adequate care
- The overall best interest of the child, even if it conflicts with the stated preference
From our experience with custody cases: courts in Nepal take the child's interview seriously. Judges are trained to detect coached responses and give genuine weight to the child's authentic feelings. Parents who attempt to manipulate the child's testimony risk losing credibility with the court.
Visitation Rights for the Non-Custodial Parent
Section 117 of the Civil Code 2074 legally protects the non-custodial parent's right to visit and maintain a relationship with their child. Divorce does not end parental responsibilities or the parent-child bond.
How Visitation Works
- By agreement: parents can set their own visitation schedule — weekends, holidays, school breaks, special occasions
- By court order: if parents disagree, the court sets a specific visitation schedule that both parties must follow
- Enforcement: if the custodial parent blocks visitation, the non-custodial parent can file a complaint with the District Court, which can modify custody or impose penalties
The custodial parent cannot deny visitation without a court order. Deliberately blocking the child's relationship with the other parent is viewed negatively by courts and can be grounds for custody modification.
Child Maintenance and Support
Section 115(5) of the Civil Code 2074 establishes who bears the financial responsibility for child maintenance:
| Child's Age | Maintenance Responsibility |
|---|---|
| Below 5 years | Mother bears maintenance cost |
| 5 to 10 years | Father bears maintenance cost |
| Above 10 years | The parent the child chooses to live with bears maintenance cost |
Key Maintenance Rules
- Duration: maintenance continues until the child reaches 18 years of age
- Amount: no fixed formula — the court considers the parent's income, property, and economic status alongside the child's needs (education, health, standard of living)
- Both parents contribute: even if one parent has physical custody, both retain financial responsibility under Section 118 (parental duties survive divorce)
- Enforcement: if the responsible parent fails to pay, the custodial parent can file an application with the District Court to enforce the maintenance order
Can Custody Be Changed After Divorce?
Yes. Custody orders are not permanent. Either parent can apply to the District Court to modify custody if circumstances have significantly changed since the original order. Common grounds for modification include:
- The custodial parent has become unfit (substance abuse, neglect, abuse)
- The custodial parent is blocking visitation repeatedly
- The child's needs have changed (medical condition, school requirements)
- The child has reached the age threshold (turning 5 or 10 triggers a potential reassessment)
- The child above 10 has changed their preference
- One parent is relocating abroad
The court applies the same "best interest of the child" standard when evaluating modification requests. The parent seeking modification must demonstrate that changed circumstances justify a new arrangement.
International Child Custody: NRN and Foreign Nationals
Cross-border custody matters add complexity to an already difficult process:
When One Parent Lives Abroad
- Nepal courts retain jurisdiction if the child is physically present in Nepal
- The parent abroad can participate through a Power of Attorney attested at the Nepali Embassy
- Courts may order that the child not be removed from Nepal without court permission during proceedings
When a Custodial Parent Wants to Relocate Abroad
If the custodial parent wants to move to another country with the child, they must:
- Obtain court permission — the non-custodial parent has the right to object
- Demonstrate the move is in the child's best interest — better education, family support, safety
- Propose a revised visitation schedule — the non-custodial parent's relationship must be preserved
Taking a child abroad without the other parent's consent or court permission can constitute parental abduction. Nepal is not a signatory to the Hague Convention on International Child Abduction, which complicates cross-border enforcement.
For complex cross-border custody matters, Nepal Divorce Services handles international family law cases across Nepal's courts.
Can Fathers Get Custody in Nepal?
Yes — though the default rules favour mothers for younger children, fathers can and do receive custody in Nepal. Situations where fathers typically get custody:
- Children above 10 who express a clear preference to live with the father
- Mother found unfit — evidence of neglect, substance abuse, or harmful behaviour
- Mother remarries and declines custody of children aged 5–10
- Mother is absent or unreachable — abandoned the child or is missing
- Mutual agreement — parents agree that the father is the better custodian
The legal system does not categorically exclude fathers — it uses age-based defaults that can be overridden by evidence of the child's best interest.
Can Grandparents Get Custody in Nepal?
In exceptional circumstances, yes. The Children's Act 2075 allows the court to appoint a guardian other than the parents if both parents are unfit or unavailable. Grandparents, aunts, uncles, or other close relatives can petition for custody by demonstrating:
- Both parents are unable or unwilling to care for the child
- The relative has an existing relationship with the child
- The arrangement serves the child's best interest
This is uncommon but not rare — in practice, grandparents frequently receive custody when both parents have migrated abroad for work.
Conclusion
Nepal's child custody laws under the Muluki Civil Code 2074 are structured to protect children's welfare above all else. The age-based system provides clarity — mothers for under 5, mother with conditions for 5–10, child's choice above 10 — while still allowing parents to negotiate their own arrangements. Both parents retain parental responsibility after divorce (Section 118), visitation rights are legally protected (Section 117), and maintenance continues until the child turns 18. As of April 2026, Nepal's courts prioritise the "best interest of the child" standard in every custody decision.
Last reviewed: April 2026.
Court Marriage in Nepal Pvt. Ltd. provides expert legal assistance for child custody, divorce, and all family law matters. Our Nepal Bar Council-registered advocates understand how emotionally difficult custody battles are — we fight for your child's best interest while protecting your parental rights. Contact us today for a confidential free consultation.
Frequently Asked Questions
Under Section 115 of the Civil Code 2074, children below 5 stay with the mother. Children aged 5–10 stay with the mother unless she remarries and declines custody. Children above 10 can choose which parent to live with. Parents can also agree on their own arrangement.
Yes. Fathers can get custody when children above 10 prefer the father, when the mother is found unfit, when the mother remarries and declines custody of children aged 5–10, or when both parents mutually agree.
Under Section 115(3), children above 10 years old can express their preference. The court interviews the child privately and gives significant weight to their choice, though it is not the sole deciding factor.
Maintenance is financial support for the child until age 18. Mother bears the cost for children below 5, father for ages 5–10, and the parent the child lives with for above 10. The amount is decided by the court based on the parent's income and child's needs.
Yes. Either parent can apply to the District Court for custody modification if circumstances have significantly changed — such as the custodial parent becoming unfit, blocking visitation, or the child reaching a new age threshold (5 or 10 years).
Section 117 legally protects the non-custodial parent's right to visit and maintain a relationship with the child. Parents can agree on a schedule, or the court sets one. The custodial parent cannot deny visitation without a court order.
In exceptional circumstances, yes. Under the Children's Act 2075, grandparents or close relatives can petition for custody if both parents are unfit or unavailable. This commonly occurs when both parents have migrated abroad for work.
Not always. The law defaults to the mother for children below 10, but this can be overridden if the mother is unfit, the child above 10 prefers the father, or parents mutually agree otherwise. The court's priority is the child's best interest.
For children below 5, the mother keeps custody even if she remarries. For children aged 5–10, if the mother remarries and does not wish to keep the child, custody transfers to the father. If she wants to keep the child, she retains custody.
Child maintenance continues until the child reaches 18 years of age. Both parents retain financial responsibility even after divorce under Section 118 of the Civil Code 2074.
Only with the other parent's consent or court permission. Taking a child abroad without consent can constitute parental abduction. The custodial parent must demonstrate the move serves the child's best interest and propose a revised visitation schedule.
File a complaint with the District Court. Deliberately blocking visitation is viewed negatively by courts and can be grounds for custody modification. The court can impose penalties on the parent who is blocking contact.
Nepal law does not use the term "joint custody" formally. However, parents can agree on shared arrangements where the child spends time with both parents. The court approves such agreements if they serve the child's best interest under Section 115(2).
It means the court considers the child's welfare above either parent's preferences. Factors include the child's physical and emotional needs, existing bonds with each parent, stability of home environment, and the parent's ability to provide care.
Yes. Either parent can request interim (temporary) custody orders from the District Court while the divorce case is pending. These temporary orders remain in effect until the final judgment sets permanent custody arrangements.
Court Marriage in Nepal Pvt. Ltd. is Nepal's first registered law firm for court marriage services. Since 2016, our Nepal Bar Council-registered advocates have helped 2,000+ couples from 50+ countries with marriage registration, document preparation, and legal consultation. Whether you are a Nepali citizen or a foreign national, contact us today for confidential legal assistance.
