Understanding Child Custody Law Under Nepalese Framework
Introduction
Child custody is one of the most sensitive legal issues arising after the breakdown of a marriage or separation of parents. While disputes between spouses may eventually conclude through divorce, judicial separation, or settlement, the welfare and future of the child continue to require legal protection. Nepalese law recognizes that every child has the right to proper care, protection, education, health care, and emotional support regardless of the marital status of their parents.
The concept of child custody is not merely about determining with whom the child will live. It encompasses authority over important decisions concerning the child’s upbringing, education, health care, nutrition, welfare, and overall development. The primary objective of custody laws is to protect the child’s best interests rather than the competing claims of either parent.
Historically, legal systems around the world favored paternal authority. Under Roman law, children were largely regarded as being under the exclusive authority of the father. Over time, however, legal developments recognized the crucial role played by mothers in a child’s early development. The emergence of the “tender years doctrine” led courts to presume that younger children should remain with their mothers. Modern legal systems have further evolved toward a child-centered approach where the paramount consideration is the welfare and best interests of the child.
Nepal has undergone a similar transformation. Earlier legal provisions under the National Code, 1963 (Muluki Ain) generally favored maternal custody, particularly where the mother was willing and capable of raising the child. Contemporary legislation, particularly the National (Muluki) Civil Code, 2017 and the Act Relating to Children, 2018, seeks to balance parental rights with the child’s welfare. Although statutory provisions continue to provide specific age-based presumptions, courts increasingly examine broader considerations such as emotional attachment, educational opportunities, financial support, stability, and the wishes of the child.
The Supreme Court and subordinate courts of Nepal have repeatedly emphasized that custody disputes should not be viewed as contests between parents. Rather, they must be resolved by determining what arrangement will best promote the physical, mental, emotional, educational, and social development of the child. Several judicial decisions have also demonstrated that while statutory presumptions favor one parent in certain situations, courts may depart from those presumptions where circumstances indicate that another arrangement better serves the child’s welfare.
Today, child custody law in Nepal is principally governed by Sections 114 to 117 of the National (Muluki) Civil Code, 2017, the Act Relating to Children, 2018, constitutional protections relating to children, and Nepal’s international obligations under the Convention on the Rights of the Child (CRC). Together, these legal instruments establish a framework that recognizes both parental responsibility and the paramount importance of safeguarding the best interests of the child.
The evolution of custody law in Nepal reflects a gradual shift from parent-centered rights toward child-centered justice. Nevertheless, practical challenges remain, particularly concerning the interpretation of the best interests principle, parental relocation abroad, remarriage, grandparental care, joint custody arrangements, and the implementation of visitation rights. These issues continue to shape judicial approaches and legal developments in child custody disputes across Nepal.
Meaning And Types Of Child Custody Rights
Meaning of Child Custody
Child custody refers to the legal authority and responsibility to care for a child and make important decisions concerning the child’s upbringing, welfare, education, health care, and overall development. In family law, custody becomes particularly important when parents separate, divorce, or are otherwise unable to live together. The purpose of custody laws is not to determine which parent has a superior right over the child but to ensure that the child’s best interests are protected.
According to Black’s Law Dictionary, custody refers to the authority to make significant decisions on a child’s behalf, including decisions relating to education, religious upbringing, health care, and general welfare. Modern legal systems recognize that custody involves both physical care and decision-making authority. Consequently, custody is viewed as a mechanism for safeguarding the child’s rights rather than merely allocating parental control.
In Nepal, child custody is governed primarily by Sections 114, 115, 116, and 117 of the National (Muluki) Civil Code, 2017 and relevant provisions of the Act Relating to Children, 2018. These laws establish the rights and responsibilities of parents and provide a framework for determining custody after divorce, separation, or disputes concerning children.
Physical Custody
Physical custody refers to the right and responsibility to have the child reside with a particular parent or guardian. The parent who has physical custody is responsible for the day-to-day care of the child, including housing, food, clothing, education, health care, supervision, and emotional support.
Under Nepalese law, physical custody is often determined according to the age of the child and the circumstances of the parents. Section 115 of the National (Muluki) Civil Code, 2017 contains specific provisions regarding custody arrangements after divorce. However, courts may also consider the child’s welfare and surrounding circumstances while determining who should exercise physical custody.
Physical custody allows the custodial parent to manage the child’s daily activities and ensure the child’s overall development. Nevertheless, the non-custodial parent generally retains visitation rights and may continue participating in the child’s life.
Legal Custody
Legal custody refers to the authority to make major decisions affecting the child’s future. These decisions may include educational choices, medical treatment, religious upbringing, travel, extracurricular activities, and other matters of long-term significance.
A parent who holds legal custody possesses the legal authority to represent the child’s interests and make important decisions on behalf of the child. Although Nepalese legislation does not expressly distinguish between legal custody and physical custody, judicial practice increasingly recognizes the need to separate physical residence from decision-making authority in appropriate cases.
Legal custody ensures that a parent remains actively involved in the child’s development even when the child primarily resides with the other parent.
Sole Custody
Sole custody exists when one parent is granted exclusive authority over the child. In such situations, one parent may exercise both physical custody and significant decision-making responsibilities. The other parent may retain visitation rights but does not exercise primary control over the child’s daily life.
Many custody disputes in Nepal result in sole custody arrangements. Traditionally, courts have frequently awarded custody to the mother, particularly for younger children, provided that she is willing and capable of caring for the child. However, courts have also awarded custody to fathers when circumstances demonstrate that such an arrangement better serves the child’s welfare.
Cases such as Bishwaraj Panta v. Rita Dhakal and Benu Kumar Basnet v. Sangita Dahal Bohora demonstrate circumstances in which custody was ultimately awarded to the father based on the factual circumstances surrounding the child’s care and welfare.
Joint Custody
Joint custody refers to an arrangement in which both parents continue to share responsibilities relating to the child after separation or divorce. Joint custody may involve shared decision-making authority, shared parenting responsibilities, or both.
Nepalese legislation does not contain detailed provisions defining joint custody or regulating how it should operate in practice. Nevertheless, courts have occasionally recognized joint custody arrangements. In Benu Kumar Basnet v. Sangita Dahal Bohora, the court approved a form of joint custody while considering the protection of the child’s property rights and overall welfare.
Internationally, joint custody is commonly divided into two categories: joint legal custody and joint physical custody. Nepalese law has yet to develop a comprehensive statutory framework governing these arrangements, resulting in significant judicial discretion.
Maternal Custody Preference
Historically, Nepalese custody law has recognized a preference for maternal custody, particularly for younger children. The former National Code, 1963 provided that if the mother wished to raise the child and was capable of doing so, custody should ordinarily remain with her.
The current National (Muluki) Civil Code, 2017 continues to reflect this principle in certain circumstances. For children below five years of age, custody generally remains with the mother regardless of remarriage. For older children, custody may also remain with the mother unless circumstances prescribed by law indicate otherwise.
Several judicial decisions, including Dr. Alokraj Chalise v. Siru Chalise and Bibek Chalise v. Satyawati Chalise, have reinforced the traditional presumption favoring maternal custody.
Paternal Custody Rights
Although Nepalese law historically emphasized maternal custody, fathers possess equal legal status as parents and may obtain custody under appropriate circumstances. The law recognizes that fathers also have responsibilities relating to maintenance, education, health care, and support of their children.
Courts have awarded custody to fathers where the mother is unwilling to exercise custody, where statutory conditions require transfer of custody, or where the child’s welfare is better served under the father’s care. Judicial decisions demonstrate that courts increasingly consider practical caregiving arrangements, educational opportunities, emotional stability, and the wishes of the child when determining custody disputes.
Custody of Children Above Ten Years
The National (Muluki) Civil Code, 2017 recognizes the importance of the child’s own preference in custody matters. For children who have attained ten years of age, courts may consider the child’s wishes regarding with whom they wish to live.
This reflects the growing recognition of children’s participation rights and aligns with international standards established under the Convention on the Rights of the Child. However, the child’s preference is not the sole determining factor. Courts continue to evaluate whether the preferred arrangement promotes the child’s overall welfare and development.
Custody and Visitation Rights
Custody and visitation are separate legal concepts. Even when one parent obtains custody, the other parent generally retains the right to maintain contact with the child.
Section 117 of the National (Muluki) Civil Code, 2017 guarantees visitation rights to the non-custodial parent. Similar protections previously existed under Section 8 of the Children’s Act, 1992. These provisions recognize that maintaining a relationship with both parents is generally beneficial for the child’s emotional and psychological development.
Courts may regulate visitation schedules where necessary and may restrict visitation only when it is shown that contact would negatively affect the child’s welfare.
Best Interest Principle and Custody Rights
Although Nepalese legislation does not expressly define a comprehensive best interests standard, judicial practice increasingly relies upon this principle. Courts consider factors such as the child’s emotional attachment, educational opportunities, living environment, health, psychological well-being, and personal preferences.
Cases such as Harikrishna Subedi v. Shrijaya Karki and Shova Shrestha v. Maya Tamang demonstrate the judiciary’s willingness to evaluate the child’s welfare beyond traditional presumptions. These decisions indicate a gradual movement toward a child-centered approach in custody determinations.
Accordingly, modern child custody rights in Nepal are not based solely upon parental entitlement. Rather, they are increasingly interpreted through the lens of protecting the child’s welfare, dignity, development, and long-term interests.
Who Can Apply For Child Custody
Introduction
Child custody disputes generally arise after divorce, judicial separation, abandonment, parental conflict, remarriage, migration abroad, or disputes concerning the care and upbringing of a child. Although parents are the primary persons entitled to seek custody, Nepalese courts have also encountered cases involving grandparents, relatives, and other individuals who have been caring for the child. The fundamental consideration in all custody proceedings remains the welfare and best interests of the child rather than the legal status of the claimant alone.
The National (Muluki) Civil Code, 2017 recognizes both parents as having responsibilities toward their children. Section 114 provides that both father and mother have joint responsibilities for the care, support, protection, and development of their children. Consequently, both parents possess the legal standing to seek custody when disputes arise.
Mother as an Applicant for Child Custody
The mother is one of the primary persons entitled to apply for custody of a child under Nepalese law. Historically, Nepalese legislation and judicial practice have recognized a maternal preference, particularly for younger children.
Section 115 of the National (Muluki) Civil Code, 2017 provides that after divorce, custody of a child below five years of age generally remains with the mother regardless of her remarriage. For children above five years of age, the mother may also obtain custody if she desires to care for the child and the circumstances prescribed by law are satisfied.
Numerous judicial decisions have reinforced the mother’s right to seek custody. In Dr. Alokraj Chalise v. Siru Chalise and Bibek Chalise v. Satyawati Chalise, the courts emphasized that a child residing with the mother cannot automatically be regarded as being under illegal detention. These decisions reflect the long-standing recognition of the mother’s role in child care and upbringing.
A mother may apply for custody during divorce proceedings, after separation, through an independent custody petition, or in response to an application filed by another person claiming custody.
Father as an Applicant for Child Custody
The father also possesses a legal right to apply for custody of a child. The current legal framework does not exclude fathers from custody rights, and courts increasingly assess custody disputes based on the child’s welfare rather than parental gender alone.
Section 114 of the National (Muluki) Civil Code, 2017 imposes equal parental responsibilities upon both parents. Furthermore, Section 115 recognizes situations where custody may be granted to the father, particularly where the mother does not wish to exercise custody, where statutory conditions favor paternal custody, or where the welfare of the child requires such an arrangement.
Several judicial decisions demonstrate the father’s ability to obtain custody. In Bishwaraj Panta v. Rita Dhakal, the father was awarded custody when the mother was residing abroad and unable to provide direct care. Similarly, in Boudhman Khadka v. Menuka Bhandari, custody was awarded to the father after the mother’s remarriage and absence from proceedings.
These decisions indicate that fathers have full legal standing to seek custody where circumstances justify their application.
Both Parents Through Mutual Agreement
Nepalese law recognizes the possibility of parental agreements regarding child custody. Section 115(5) of the National (Muluki) Civil Code, 2017 allows separated or divorced parents to determine issues relating to maintenance, education, health care, and custody through mutual agreement.
Where parents reach an agreement that protects the child’s welfare, courts generally respect such arrangements. However, the court retains authority to intervene if the agreement appears contrary to the child’s best interests.
Mutual agreements often reduce conflict and allow parents to cooperate in raising their children after separation.
Parent Seeking Modification of Existing Custody Orders
A parent who has previously lost custody is not permanently barred from seeking custody in the future. Circumstances may change after the original custody determination, making it necessary to revisit the arrangement.
A parent may apply for modification of custody where:
- The custodial parent becomes unable to care for the child.
- The child is neglected or abused.
- The custodial parent permanently relocates abroad.
- Significant changes occur in the child’s circumstances.
- The child’s welfare is adversely affected.
Nepalese courts have demonstrated willingness to reconsider custody arrangements where changed circumstances justify judicial intervention.
Grandparents Seeking Custody
Although the National (Muluki) Civil Code primarily contemplates parental custody, Nepalese courts have occasionally addressed claims involving grandparents who have been caring for children.
The case of Nilam Subedi et al. v. Shambhu Raut involved a dispute where the grandmother sought custody while the mother was residing in Canada. The court ultimately awarded custody to the father but recognized the grandmother’s continuing relationship with the child and permitted contact arrangements.
Similarly, in Biraj Nagarkoti v. Krishna Umari Shrestha, the court considered the role played by maternal grandparents in raising the child and evaluated whether the child was being cared for appropriately.
These cases demonstrate that grandparents may become parties to custody disputes where they have been acting as primary caregivers, although parental rights generally receive priority.
Relatives Acting as Caregivers
In certain circumstances, relatives such as maternal uncles, aunts, or other family members may become involved in custody proceedings. This often occurs where parents are absent, working abroad, deceased, or otherwise unable to care for the child.
Courts assess such claims carefully and focus on whether the caregiver has been providing proper care, education, health services, and emotional support to the child. However, relatives do not automatically acquire superior rights over living parents unless exceptional circumstances justify such an outcome.
Legal Guardians and Persons Entrusted With Care
A person who has been entrusted with the care of a child may also become involved in custody proceedings. Nepalese courts have occasionally recognized situations where a child has developed strong emotional bonds with a caregiver other than the biological parents.
In Shova Shrestha v. Maya Tamang, the Supreme Court considered the child’s preference to remain with the person entrusted by the father to care for him. The Court examined the child’s happiness, educational arrangements, and living conditions before determining that the situation did not constitute illegal detention.
This case illustrates that custody disputes may sometimes involve individuals who have assumed caregiving responsibilities for significant periods.
Parents Living Abroad
Many custody disputes in Nepal arise because one parent resides outside Nepal for employment, education, or permanent residence. A parent living abroad retains the legal right to apply for custody. However, courts often examine whether the parent can practically provide direct care and supervision to the child.
Cases such as Nilam Subedi et al. v. Shambhu Raut and Benu Kumar Basnet v. Sangita Dahal Bohora demonstrate the judicial challenges associated with determining custody when one parent resides outside Nepal.
While foreign residence does not automatically disqualify a parent from obtaining custody, courts frequently assess whether the arrangement would serve the child’s welfare and ensure proper parental care.
Child’s Role in Custody Proceedings
Although children do not formally apply for custody in the same manner as adults, their wishes may influence custody determinations. Section 115 of the National (Muluki) Civil Code, 2017 permits consideration of the preferences of children who have attained ten years of age.
Several court decisions have taken the child’s expressed wishes into account when determining custody. However, the child’s preference is only one factor among many considered by the court.
Legal Requirements For Obtaining Child Custody
Introduction
Obtaining child custody in Nepal is not based solely on the wishes of either parent. Although the National (Muluki) Civil Code, 2017 contains specific provisions regarding custody after divorce or separation, courts increasingly examine whether granting custody to a particular person would promote the welfare and overall development of the child. Consequently, a person seeking custody must satisfy both statutory requirements and factual considerations relating to the child’s best interests.
The legal requirements for obtaining custody are derived primarily from Sections 114, 115, 116, and 117 of the National (Muluki) Civil Code, 2017, the Act Relating to Children, 2018, constitutional protections relating to children’s rights, and judicial precedents developed by Nepalese courts.
Existence of a Parent-Child Relationship
The first requirement for obtaining custody is the existence of a legally recognized relationship with the child. Generally, custody applications are filed by biological parents following divorce, separation, or disputes concerning the care of the child.
The court must be satisfied regarding the identity of the child and the relationship between the applicant and the child. Birth certificates, citizenship records, marriage certificates, divorce decrees, and other official documents are commonly relied upon to establish this relationship.
In cases involving grandparents or other relatives, courts may require proof demonstrating the applicant’s caregiving role and relationship with the child.
Custody Dispute Following Separation or Divorce
Most custody proceedings arise following divorce or marital separation. Section 115 of the National (Muluki) Civil Code, 2017 specifically governs custody arrangements after divorce and establishes legal rules concerning which parent may exercise custody.
Where parents separate without reaching an agreement concerning the child, either parent may seek a judicial determination of custody. The court then examines the statutory framework together with the factual circumstances of the child and parents.
Compliance With Section 115 Of The National Civil Code
Section 115 establishes age-based custody arrangements that serve as the primary legal framework for determining custody after divorce.
Under the law:
- A child below five years of age generally remains in the custody of the mother regardless of remarriage.
- For children above five years of age, the mother may continue to have custody if she desires to keep the child and circumstances permit.
- In situations where the mother does not take custody or where statutory conditions require otherwise, custody may pass to the father.
- For children above ten years of age, the court may consider the wishes of the child.
Therefore, a person seeking custody must demonstrate that the legal conditions prescribed by Section 115 support the requested arrangement.
Ability To Provide Proper Care And Support
A fundamental requirement for obtaining custody is the ability to provide proper care, protection, and support to the child.
Section 114 of the National (Muluki) Civil Code, 2017 imposes joint parental responsibility for the care and support of children. Likewise, Section 7 of the Act Relating to Children, 2018 requires parents to bear expenses relating to the child according to their economic condition.
The court may examine whether the applicant can adequately provide:
- Food and nutrition.
- Shelter and housing.
- Education.
- Medical care.
- Emotional support.
- Security and supervision.
The ability to fulfill these responsibilities often plays a significant role in custody determinations.
Capacity To Ensure Child’s Overall Development
Section 116 of the National (Muluki) Civil Code, 2017 requires the custodial parent to provide nutritious food, education, sports, entertainment, and other necessities according to economic capacity.
Consequently, courts frequently evaluate whether the applicant can ensure the child’s overall development. This assessment extends beyond financial resources and includes emotional, educational, social, and psychological support.
In several custody cases, courts have examined whether the applicant is actively involved in the child’s education and welfare before determining custody.
Consideration Of The Child’s Best Interests
Although Nepalese legislation does not expressly define a comprehensive “best interests of the child” standard, judicial practice demonstrates that this principle has become central to custody determinations.
The Supreme Court in Harikrishna Subedi v. Shrijaya Karki emphasized that custody disputes should be decided by considering the child’s circumstances, personal situation, psychological condition, and overall welfare.
Courts may therefore examine:
- Emotional attachment between parent and child.
- Stability of living arrangements.
- Educational opportunities.
- Physical and mental well-being.
- Existing caregiving relationships.
- Social and family environment.
The applicant seeking custody should be able to demonstrate that granting custody would promote the child’s best interests.
Child’s Preference In Appropriate Cases
The wishes of the child may constitute an important legal requirement in certain cases.
Section 115 recognizes that where a child has attained ten years of age, the child’s preference may be taken into consideration. Courts have increasingly sought to understand the child’s wishes, particularly where the child possesses sufficient maturity to express a reasoned preference.
Cases such as Shova Shrestha v. Maya Tamang and Nilam Subedi et al. v. Shambhu Raut demonstrate the significance of the child’s own views during custody proceedings.
However, the child’s preference is not automatically determinative and must be evaluated alongside other factors affecting welfare.
Physical Presence And Availability To Care For The Child
Several Nepalese decisions have emphasized the importance of a parent’s physical availability to care for the child.
In Bishwaraj Panta v. Rita Dhakal and Benu Kumar Basnet v. Sangita Dahal Bohora, courts considered whether the parent seeking custody was physically present and capable of providing direct supervision and care.
Where one parent resides abroad for employment or permanent residence, courts may assess whether the child will receive sufficient parental care under the proposed arrangement.
Although residence outside Nepal does not automatically disqualify a parent, practical caregiving capacity remains a relevant consideration.
Absence Of Circumstances Harmful To The Child
The court must be satisfied that granting custody will not expose the child to circumstances detrimental to the child’s welfare.
Applicants seeking custody should demonstrate that:
- The child will receive adequate supervision.
- The environment is safe and stable.
- Educational needs will be fulfilled.
- Health and nutritional requirements will be met.
- The child will not be subjected to neglect or abuse.
Where evidence indicates that the child’s welfare may be adversely affected, the court may refuse custody even if the applicant otherwise possesses legal rights.
Consideration Of Remarriage
The remarriage of a parent may influence custody determinations under Section 115 of the National (Muluki) Civil Code, 2017.
In Boudhman Khadka v. Menuka Bhandari, the court considered the mother’s remarriage as a relevant factor while awarding custody to the father. The court reasoned that the new family circumstances could affect the child’s development and welfare.
However, remarriage alone does not automatically deprive a parent of custody. Courts must still examine the overall circumstances and determine whether the proposed arrangement serves the child’s best interests.
Respect For Existing Custody Agreements
Section 115(5) permits parents to reach agreements concerning maintenance, education, health care, and custody.
Where a valid agreement exists, courts may respect the arrangement unless it appears contrary to the child’s welfare. Therefore, applicants seeking to challenge an existing custody agreement may need to demonstrate changed circumstances or show that the agreement no longer serves the child’s best interests.
Protection Of Visitation Rights
A person seeking custody should also acknowledge the legal rights of the non-custodial parent.
Section 117 of the National (Muluki) Civil Code, 2017 guarantees visitation rights to the parent who does not have custody. Courts generally prefer arrangements that allow the child to maintain meaningful relationships with both parents unless such contact would be harmful.
The willingness of an applicant to facilitate visitation and maintain the child’s relationship with the other parent may be considered positively by the court.
Judicial Evaluation Of Evidence
Ultimately, custody cannot be obtained solely through legal entitlement. The applicant must present sufficient evidence demonstrating why custody should be granted.
Courts may evaluate:
- Documentary evidence.
- Witness testimony.
- School records.
- Medical records.
- Child interviews.
- Reports concerning the child’s welfare.
The burden lies upon the applicant to establish that granting custody is consistent with both the law and the child’s welfare.
Documents Required For Child Custody Proceedings
Introduction
Child custody proceedings require the submission of various documents to establish the identity of the parties, the relationship between the child and the applicant, the existing custody arrangement, and the circumstances that justify granting custody. Although the National (Muluki) Civil Code, 2017 does not prescribe a comprehensive statutory list of documents for every custody case, courts generally require sufficient documentary evidence to determine the legal rights of the parties and assess the best interests of the child.
The specific documents required may vary depending on whether the custody dispute arises from divorce, separation, remarriage, migration abroad, guardianship disputes, habeas corpus proceedings, or applications seeking modification of an existing custody order. However, certain core documents are commonly required in most custody proceedings before Nepalese courts.
Citizenship Certificates Of Parents
Citizenship certificates of both parents are among the most important documents in custody proceedings. These documents establish the identity of the parties and verify their legal status.
Courts use citizenship certificates to confirm the names, ages, addresses, and legal identity of the individuals claiming custody. Where one parent resides abroad, copies of citizenship certificates may be accompanied by passport records or foreign residence documents.
Birth Certificate Of The Child
The child’s birth certificate is one of the most essential documents in custody cases. It establishes:
- The identity of the child.
- The child’s date of birth.
- The names of the parents.
- The legal relationship between the child and the parties.
The age of the child is particularly important because Section 115 of the National (Muluki) Civil Code, 2017 contains age-specific provisions relating to custody. Therefore, the birth certificate often becomes a key piece of evidence in determining which statutory provision applies.
Marriage Registration Certificate
Where custody proceedings arise from a marital relationship, the marriage registration certificate is commonly required.
The marriage certificate helps establish:
- The legal relationship between the parents.
- The existence of the marital union.
- The legitimacy of the child-parent relationship where relevant.
This document is particularly important when custody disputes arise during divorce proceedings or immediately after separation.
Divorce Certificate Or Divorce Judgment
If the parties have already divorced, the divorce decree, judgment, or certificate must generally be submitted to the court.
The divorce document helps establish:
- The date of divorce.
- Custody arrangements made during divorce.
- Existing agreements concerning the child.
- Maintenance and support obligations.
Where custody was previously determined during divorce proceedings, the court may examine the prior order before deciding whether modification is necessary.
Custody Agreements Between Parents
Section 115(5) of the National (Muluki) Civil Code, 2017 recognizes agreements between parents regarding maintenance, education, health care, and custody of minor children.
Where such an agreement exists, a copy should be submitted to the court. The court may review the agreement to determine whether:
- It remains valid.
- Both parties consented freely.
- It serves the best interests of the child.
- Circumstances have changed since the agreement was executed.
Custody agreements often become significant evidence in subsequent custody disputes.
Evidence Of Current Residence Of The Child
Documents establishing where the child currently resides are frequently required.
Such evidence may include:
- Ward office recommendations.
- Residence verification letters.
- School records.
- Utility records.
- Local authority certifications.
Residence information helps the court determine the child’s existing living environment and identify the primary caregiver.
School Records And Educational Documents
Educational records are often important in custody proceedings because courts consider the child’s educational welfare while determining custody.
Relevant documents may include:
- School admission records.
- Attendance records.
- Academic progress reports.
- Fee payment receipts.
- Recommendation letters from schools.
In several custody cases, courts have examined whether a parent or caregiver has been ensuring proper education for the child. Educational records therefore assist the court in assessing caregiving responsibilities.
Medical Records And Health Documents
Medical documents may be submitted where health-related issues are relevant to the custody dispute.
These documents may include:
- Vaccination records.
- Medical reports.
- Hospital records.
- Disability certificates.
- Treatment records.
Courts may rely upon such documents to determine whether the child is receiving adequate medical care and whether a particular parent is capable of addressing the child’s health needs.
Evidence Of Financial Capacity
Although custody is not determined solely on economic status, courts may consider whether the applicant can provide for the child’s basic needs.
Documents commonly submitted include:
- Employment certificates.
- Salary statements.
- Income verification documents.
- Tax records.
- Business registration certificates.
- Bank statements.
Cases such as Nilam Subedi et al. v. Shambhu Raut demonstrate that courts may examine whether a parent is capable of providing food, education, and other necessities according to their economic condition.
Proof Of Child Care And Maintenance Expenses
Evidence showing that the applicant has been actively supporting the child may strengthen a custody claim.
Relevant documents may include:
- School fee receipts.
- Medical expense receipts.
- Food and maintenance expenditures.
- Bank transfer records.
- Remittance records.
- Child support payment records.
In Samundra Shrestha v. Jamuna Kumari Shrestha, evidence relating to payment of school fees played a role in demonstrating caregiving responsibility.
Passport And Foreign Residence Documents
Where one parent resides outside Nepal, additional documents may be necessary.
These may include:
- Passport copies.
- Visa documents.
- Residence permits.
- Work permits.
- Foreign employment documents.
- Immigration records.
Cases involving parents living abroad often require courts to assess whether the parent can realistically provide care and supervision despite residing outside Nepal.
Witness Statements And Affidavits
Witness evidence may be presented through written statements, affidavits, or oral testimony.
Potential witnesses include:
- Teachers.
- Relatives.
- Neighbors.
- Social workers.
- Caregivers.
Witness testimony may assist the court in determining:
- Who has been caring for the child.
- The child’s living conditions.
- The child’s relationship with each parent.
- The child’s educational and emotional welfare.
Court Orders And Previous Judgments
Where previous legal proceedings have occurred, copies of prior judgments and court orders should be submitted.
Examples include:
- Divorce judgments.
- Custody orders.
- Visitation orders.
- Habeas corpus decisions.
- Maintenance orders.
These documents provide the court with the procedural history of the dispute and help identify existing legal obligations.
Child’s Statement Or Interview Record
For children who have attained sufficient maturity, the court may consider the child’s own views regarding custody.
Where available, records of child interviews, judicial interactions, or welfare assessments may be relevant. Section 115 of the National (Muluki) Civil Code, 2017 recognizes the importance of considering the wishes of children who have attained ten years of age.
Cases such as Shova Shrestha v. Maya Tamang and Nilam Subedi et al. v. Shambhu Raut demonstrate that courts may take the child’s preference into account when determining custody.
Evidence Relating To Child’s Welfare
Because the child’s welfare remains the paramount consideration, any document demonstrating the child’s best interests may be relevant.
Examples include:
- Psychological assessments.
- Social welfare reports.
- Child development reports.
- Counseling records.
- Recommendations from educational institutions.
- Community welfare reports.
The Supreme Court in Harikrishna Subedi v. Shrijaya Karki emphasized that courts should examine the child’s circumstances, psychological condition, and overall welfare while resolving custody disputes.
Documents In Habeas Corpus Custody Cases
Custody disputes occasionally arise through writs of habeas corpus where one party alleges illegal detention of a child.
In such cases, additional documents may include:
- Applications for habeas corpus.
- Police complaints.
- Correspondence regarding custody.
- Court notices.
- Orders directing production of the child.
Cases such as Dr. Alokraj Chalise v. Siru Chalise and Amlesh Devi Sah v. Upendra Yadav illustrate how custody issues may be addressed through habeas corpus proceedings.