Child Custody and Guardianship Laws in Nepal: Rights and Responsibilities

Introduction: The Paramount Principle—Best Interests of the Child

The central organizing principle of child law in Nepal is deceptively simple yet profoundly challenging to apply: the best interests of the child are the paramount consideration. This principle, enshrined in the Constitution of Nepal 2072, the Civil Code 2074, and virtually every piece of Nepali family law, means that when courts must decide who will care for a child, what arrangements will govern the child's life, or what constitutes appropriate guardianship, the child's welfare—not the parents' rights, preferences, or convenience—must be the decisive factor.

For lawyers representing parents, children, or child welfare organizations in custody and guardianship matters, understanding how Nepali courts interpret and apply the "best interests" standard is essential. It is not a simple legal test with a predictable outcome but rather a multifactorial, nuanced inquiry that requires understanding the child's specific needs, each potential caregiver's capacity, and the particular circumstances of the case.

The Civil Code 2074 (enacted on Magh 3, 2074 BS, equivalent to November 18, 2017 AD) substantially reformed guardianship and custody law, introducing modern concepts of child welfare, explicit recognition of children's rights, and a framework that prioritizes the child's welfare over traditional patriarchal presumptions. Yet, in practice, many custody disputes proceed under incomplete understandings of these modern principles, with outdated assumptions about mothers' automatic rights or fathers' automatic authority persisting in some jurisdictions.

This comprehensive guide is designed as a practical manual for Nepali lawyers handling custody and guardianship cases. It provides deep coverage of the legal framework, the application of the best interests standard in various contexts, the procedures for establishing and modifying custody and guardianship, the duties and liabilities of custodians and guardians, and strategic approaches for protecting children's interests while representing parents, guardians, or child welfare organizations.

Part 1: Foundational Concepts and Principles

1.1 Custody vs. Guardianship: Critical Distinctions

While these terms are sometimes used interchangeably in casual conversation, they have distinct legal meanings in Nepali law.

Custody refers to:

• Physical care and control of the child;
• The right to determine the child's day-to-day living arrangements;
• The right to make routine decisions about the child's daily life (meals, bedtime, school schedule, etc.);
• The practical responsibility for the child's safety, health, and welfare.

Custody is typically granted to one parent (primary custodian) or shared between parents (joint custody). The non-custodial parent may have visitation rights.

Guardianship is a broader concept encompassing:

• Legal authority over the child;
• The right to make major decisions about the child's welfare, education, medical care, religious upbringing, and long-term future;
• The duty to protect the child's property and interests;
• In some contexts, the ability to bind the child to contracts and represent the child legally.

A guardian may or may not have physical custody. For example:

• A maternal grandfather might be appointed guardian of property and major life decisions while the mother retains daily custody.
• An uncle might be guardian while the child lives with an aunt who provides day-to-day care.
• Both parents might share guardianship (parental authority) even if one parent has primary physical custody.

1.2 Parental Rights, Guardianship, and Succession

Under Nepali law, a child ordinarily has two natural guardians: the mother and father. This parental authority ("guardianship") is a fundamental incident of parenthood and cannot be entirely divested except in extreme circumstances (abandonment, severe neglect, abuse).

However, parental guardianship is not absolute or inalienable. It can be:

• Limited (one parent exercises guardianship for specific matters only);
• Suspended (if a parent is unfit or absent);
• Transferred (to a court-appointed guardian if both parents die, abandon, or are incapable).

Succession of Guardianship: If a parent dies or becomes unable to serve as guardian, guardianship does not automatically pass to another parent but is determined by:

1. The surviving parent (if fit);
2. A person named in the deceased parent's will or expressed wish;
3. Any person related to the child by blood or marriage whom the court deems fit;
4. In the absence of suitable relatives, a court-appointed guardian, possibly from a welfare organization.

1.3 The Paramount Principle: Best Interests of the Child

The concept of "best interests of the child" is the foundational principle upon which all custody and guardianship decisions must rest.

Constitutional Basis: The Constitution of Nepal 2072 explicitly recognizes the right of children to special protection and the right to be cared for in their best interests.

Statutory Expression: The Civil Code 2074 requires that all decisions regarding children be made prioritizing their best interests. This is not a secondary consideration but the paramount one—overriding parental preferences, family custom, or other interests.

Not a Fixed Test: "Best interests" is not a formula with a fixed answer but a context-specific inquiry that must account for:

• The individual child's age, maturity, and stated preferences;
• The child's relationship with each potential caregiver;
• The child's adjustment to school, community, and cultural environment;
• Each caregiver's capacity to provide physical, emotional, and educational needs;
• The stability and safety of proposed living arrangements;
• Any history of abuse, neglect, or substance abuse by either parent;
• The child's religious, cultural, and social needs.

Courts have broad discretion in weighting these factors and are guided by the overarching principle that the child's welfare must come first.

1.4 Parental Rights: A Duty-Based Framework

Modern Nepali law increasingly conceives of parental rights not as privileges or entitlements but as responsibilities and duties. A parent has the "right" to custody because they have the responsibility to care for and protect the child—not because they have a property-like interest in the child.

Implications:

• A parent who is unwilling or unable to perform parental duties cannot claim custody based on being the parent.
• If one parent has been the primary caregiver and has fulfilled parental duties, they may have stronger claim than a parent who has been absent or unengaged, regardless of gender.
• A parent whose conduct (abuse, substance abuse, abandonment) demonstrates unwillingness to fulfill duties will lose custody.

This principle is particularly important in challenging outdated presumptions that fathers automatically have superior rights or that mothers automatically have primary claims to very young children.

Part 2: The Best Interests of the Child Standard—Application

2.1 Factors Courts Consider in Determining Best Interests

When deciding custody or guardianship, Nepali courts consider a comprehensive array of factors. No single factor is conclusive, and weight varies by case.

Child's Preferences and Wishes:

• Older children (typically 10 and above) have their preferences given significant weight.
• Teenagers' preferences are given heavy weight, though courts may override if the preference appears based on immature reasoning or manipulation.
• Very young children's preferences (if they can be discerned) are given little weight because they lack judgment and may be easily influenced.

Age and Stage of Development:

• Infants and very young children (0-5 years) are typically presumed to benefit from consistent care by the primary caregiver during infancy, often the mother.
• School-age children (6-12 years) need stable schooling, peer relationships, and familiar environment.
• Adolescents (13-17 years) need independence, peer relationships, and preparation for adulthood.

Courts consider whether each proposed custodian can meet the developmental needs of the child at this particular stage.

Relationship with Each Parent/Caregiver:

• The quality of attachment the child has developed with each parent is critical. A child who has strong bonding with one parent will be harmed by unnecessary separation.
• Past parenting patterns: Which parent has been the primary caregiver, engaged in daily care, homework help, and emotional support?
• Shared activities and interests: Does a parent actively participate in the child's hobbies, sports, education?

Where one parent has been essentially absent and the other has been the primary caregiver, this disparity weighs heavily toward the primary caregiver's custody.

Stability and Continuity:

• Children benefit from stability in residence, school, and community. Disrupting these is harmful.
• If the child has lived in a home, attended a school, and developed community ties, separating the child from these to accommodate a parent's preferences is problematic.
• Courts consider whether proposed living arrangements are stable—can the parent provide ongoing, reliable care or is the arrangement temporary or precarious?

Physical, Emotional, and Educational Needs:

• Physical care: Does each parent have the time, resources, and capability to provide adequate food, shelter, healthcare, and supervision?
• Emotional support: Can the parent provide emotional warmth, guidance, and support for the child's psychological development?
• Education: Does the parent support the child's schooling, help with learning, and facilitate academic progress?

A parent with significant substance abuse, mental illness, or personality disorders that impede caregiving will be questioned on capacity to meet these needs.

Health and Safety Considerations:

• Any history of abuse (physical, sexual, or emotional) by a parent creates a serious barrier to custody.
• Domestic violence exposure harms children even if not directly targeted at them. A parent who has perpetrated violence is scrutinized carefully.
• Substance abuse: Active addiction impairs judgment and caregiving capacity.
• Criminality: While a parent with a past criminal conviction is not automatically barred, serious crimes (especially sexual abuse or violence) strongly weigh against custody.

Cultural, Religious, and Community Ties:

• Children benefit from continuity in cultural, religious, and community identity. Courts try to preserve these.
• If the child has been raised in a particular religious tradition, custody arrangements should generally continue this (unless the parents have agreed otherwise).
• If the child has strong community ties (neighborhood friends, cultural events), maintaining these ties is preferable.

Each Parent's Commitment and Involvement:

• A parent who has been actively involved in the child's life, attentive to the child's needs, and committed to ongoing parenting has an advantage over a parent who has been indifferent.
• Courts are aware that some parents suddenly claim interest in custody only when divorce proceedings begin, after years of minimal involvement.

Expressed Wishes of Either Parent:

• If one parent is genuinely willing to facilitate the child's relationship with the other parent (willing to encourage contact, not badmouth, support visitation), this is viewed favorably.
• A parent who claims custody but simultaneously works to alienate the child from the other parent presents a serious problem.

2.2 Challenging Outdated Presumptions

In practice, lawyers must often challenge outdated legal presumptions that may still inform some judges' thinking:

The "Tender Years Doctrine": This is the outdated presumption that very young children are best cared for by their mothers. While courts may recognize that infants benefit from familiar caregivers (and mothers are often primary caregivers), this is not an automatic rule. A father who has been the primary caregiver of an infant, or a mother who is unfit, will not lose custody simply because the child is young. The actual caregiving pattern, not the parent's gender, is what matters.

"Patria Potestas" (Father's Authority): The idea that fathers have superior authority over children is deeply embedded in traditional Nepali law. However, modern law rejects this. Authority is based on fitness to parent and the child's best interests, not gender.

Caste and Religious Supremacy: Some outdated views suggest that a parent of "higher" caste has better custody rights, or that one religious tradition is inherently superior. Such thinking is unconstitutional and has no place in modern custody law.

Lawyers challenging such presumptions should:

• Cite constitutional equality provisions;
• Reference Civil Code 2074's non-discriminatory language;
• Present evidence about the child's actual attachment and the parent's actual involvement;
• Challenge any explicit prejudicial statements.

2.3 "Harm" as a Threshold for Changing Custody

Many custody cases involve requests to change an existing arrangement. Courts apply a "harm" threshold: changing custody should not occur unless the change would benefit the child or prevent harm.

Burden of Proof: The party seeking to change custody bears the burden of proving that a change serves the child's interests. Simply showing that the other parent is imperfect is insufficient; there must be evidence of actual harm or benefit from change.

Harm Standard: Change is justified if:

• The current arrangement is causing identifiable harm (abuse, neglect, exposure to danger);
• The proposed arrangement offers clear, substantial benefits to the child;
• The benefits outweigh the disruption and harm of changing the familiar arrangement.

If a child is reasonably well-cared for in the current arrangement, courts are reluctant to disrupt this merely because another party believes they could do better.

Part 3: Types of Custody Arrangements

3.1 Sole Custody

In sole custody, one parent has both:

• Physical custody: The child lives primarily (or exclusively) with the sole custodian;
• Legal custody: That parent makes major decisions about the child's welfare, education, medical care, and upbringing.

The other parent typically retains:

• Visitation rights: Regular scheduled time with the child;
• Parental authority: Limited rights, particularly to be informed about major decisions and to spend time with the child.

When Sole Custody is Awarded:

• When one parent is clearly unfit (abusive, severely neglectful, incapacitated).
• When one parent has been the exclusive or near-exclusive caregiver.
• When the child strongly prefers one parent and is mature enough to express judgment.
• When shared custody is genuinely infeasible (e.g., parents cannot communicate, live far apart).

Challenges of Sole Custody:

• The non-custodial parent loses significant involvement in the child's life.
• The child loses regular contact with the non-custodial parent (though visitation can mitigate this).
• The custodian bears the full responsibility and stress of childcare.

3.2 Joint Custody

Joint custody means both parents share significant rights and responsibilities regarding the child. This can be structured in various ways:

Joint Legal Custody with Primary Physical Custody:

• Both parents make major decisions (education, medical care, religious upbringing, major discipline).
• One parent (the primary custodian) has physical custody; the child lives primarily with that parent.
• The other parent (secondary custodian) has regular visitation, possibly including significant blocks of time (weekends, vacations, extended summer breaks).
• Both parents remain meaningfully involved in the child's life, though one provides day-to-day care.

Joint Legal and Physical Custody (Equally Shared):

• Both parents share decision-making authority and physical custody roughly equally.
• The child's time is divided between both parents' homes, perhaps alternating weeks, or dividing months, or other arrangements.
• Both homes function as the child's primary residence.

Advantages of Joint Custody:

• Both parents maintain meaningful involvement in the child's life.
• The child benefits from relationships with both parents.
• Decision-making is collaborative and neither parent has unilateral power.
• The burden of childcare is shared.

Challenges of Joint Custody:

• Requires that parents cooperate and communicate effectively despite marital conflict.
• Can be logistically complex (moving between homes, managing schedules).
• May be confusing for the child if arrangements are unstable.
• If parents are highly conflicted, the child may be caught in the middle.

3.3 Guardianship vs. Physical Custody

In some arrangements, guardianship (legal authority) and physical custody are held by different people.

Scenario 1:

• Guardians: Both parents (they retain parental authority and make major decisions).
• Physical Custodian: Maternal grandmother (she provides day-to-day care).
• Reason: Parents are working abroad; the grandmother is caring for the child; parents remain ultimate decision-makers.

Scenario 2:

• Guardian: Maternal uncle (appointed by court because both parents died or are incapable).
• Physical Custodian: Maternal aunt (the uncle's sister, who actually cares for the child).
• Reason: Practical arrangement where the uncle has legal authority but the aunt provides care.

Such arrangements are valid and common, particularly in extended family contexts.

3.4 Visitation and Parental Access

For a non-custodial parent (particularly in sole custody arrangements), visitation rights are critical to maintaining the parent-child relationship.

Regular Visitation:

• Scheduled visits: For example, every other weekend, or on designated weekdays after school.
• Holiday and vacation visitation: Extended time during school holidays, summer break, and significant holidays.
• Gradual expansion: Visitation can increase as the child grows older and may become overnight visitation as the child matures.

Flexible or Open Visitation:

• In cooperative parent situations, visitation can be informal and flexible, with parents agreeing to additional time as convenient.
• This requires trust and good communication between parents.

Supervised Visitation:

• If a parent's fitness is questioned but some contact is deemed beneficial, visitation may be supervised.
• A neutral third party (often a social worker or trained supervisor) ensures the parent does not harm the child.
• Supervised visitation is used when there has been abuse, serious mental illness, or parental unfitness.

Restricted Visitation:

• If a parent poses a danger even with supervision, visitation may be restricted to phone/video contact only.
• This is used in severe cases: serious violence history, active child abuse, high-risk sexual conduct.

No Contact/Parental Rights Suspended:

• In extreme cases, a parent may lose visitation entirely if contact would seriously harm the child.
• This is rare and used only when all other options have been exhausted.

Part 4: Duties and Liabilities of Custodians and Guardians

4.1 Custodian's Duties

A custodian (the parent with day-to-day care responsibility) has several fundamental duties:

Duty to Provide Basic Needs:

• Food, shelter, and clothing adequate to the child's needs.
• Healthcare (regular check-ups, treatment of illness, emergency care).
• Safe living environment free from hazards, abuse, or severe neglect.

Duty to Provide Education:

• Enrollment in school and regular attendance.
• Support for learning and academic progress.
• Provision of school fees, uniforms, materials.

Duty to Supervise and Protect:

• Reasonable supervision to protect the child from dangers.
• Protection from abuse, exploitation, and criminal conduct.
• Prevention of the child engaging in dangerous or illegal activities.

Duty of Care in Daily Decisions:

• Decisions about meals, bedtime, hygiene, play, and other daily matters should be made with the child's welfare in mind.
• Decisions should be age-appropriate and consider the child's development.

Duty to Facilitate Relationships:

• If there is a non-custodial parent with visitation rights, the custodian should not unjustifiably prevent or interfere with visits.
• The custodian should not badmouth the other parent or work to alienate the child.

4.2 Guardian's Duties (Legal Authority)

A guardian (holding parental authority) has duties related to major life decisions:

Duty to Protect the Child's Property:

• If the child has property, inheritance, or assets, the guardian manages these in the child's interest.
• The guardian cannot misappropriate the child's property for personal use.
• Upon the child reaching adulthood, the guardian must account for and transfer the property.

Duty to Make Major Decisions in the Child's Best Interest:

• Education: Choice of school, career path, vocational training.
• Medical Care: Consent to medical procedures, medical decisions.
• Religious Upbringing: Cultural and religious education consistent with family tradition or the child's inclination.
• Major Discipline: Serious consequences for rule violations.

Duty of Care and Loyalty:

• The guardian must act in the child's best interest, not the guardian's own interest.
• The guardian cannot act in ways that harm the child's welfare to benefit themselves.

Duty to Account:

• If the guardian manages the child's property, the guardian must keep records and account for expenditures.
• The guardian must be able to demonstrate that the child's property was used appropriately.

4.3 Liability of Custodians and Guardians

Custodians and guardians can be held liable for breaching their duties.

Criminal Liability:

• A custodian who physically abuses a child can be prosecuted for assault or child abuse crimes.
• Severe neglect may constitute criminal child endangerment.
• Sexual abuse of a child in one's care is a serious crime.

Civil Liability:

• A parent/custodian whose negligence harms a child can be sued for damages.
• For example, if a custodian fails to supervise and a child is hit by a car, the custodian may be liable.
• A custodian who allows abuse to occur can be liable to the child for damages.

Removal of Custody:

• A custodian who breaches fundamental duties can lose custody through court proceedings.
• Courts can remove custody if the child is being abused, severely neglected, or exposed to serious harm.
• The standard for removal is that the child is in danger or the parent is unable or unwilling to provide adequate care.

Liability for Property:

• A guardian who misappropriates the child's property can be sued by the child (or on the child's behalf).
• Upon reaching adulthood, the child can demand accounting and recovery of misused property.

4.4 Parental Immunity and Limits

While parents have authority to discipline children, parental discipline must be reasonable and proportional to the offense. Excessive punishment is not protected by parental authority.

Corporal Punishment: While traditional corporal punishment (caning, beating) was historically permitted, modern law and constitutional protections increasingly limit this. Courts may intervene if punishment causes injury or is excessive.

Emotional Abuse: Constant criticism, humiliation, threats, or psychological cruelty constitutes abuse, not legitimate discipline, and can result in loss of custody.

Sexual Abuse: Any sexual conduct with a child is a serious crime and grounds for immediate removal of custody and criminal prosecution.

Part 5: Guardianship of Orphaned and Abandoned Children

5.1 Succession of Guardianship Upon Death of Parent

When a parent dies, guardianship passes in this order:

1. Surviving Parent (if fit to serve);
2. Person Nominated in the deceased parent's will or expressed wishes (if suitable);
3. Relatives by blood or marriage (a suitable relative, as determined by the court);
4. Court-Appointed Guardian (if no suitable relative, the court appoints a fit person, often from a registered welfare organization).

Fitness Determination: At each stage, the court must determine if the proposed guardian is fit. Fitness includes:

• Ability to meet the child's needs;
• Absence of serious criminal history or abuse;
• Age and capacity to serve;
• Willingness to serve as guardian.

A parent can will their estate to one person while nominating a guardian for the child to another person. Courts respect such wishes if the nominated guardian is fit and the arrangement serves the child's interests.

5.2 Guardianship of Fully Orphaned Children

When both parents die, and there is no surviving spouse, guardianship is determined by the court considering:

1. Expressed wishes of the deceased parents;
2. Suitability of available relatives (age, capacity, resources, love for the child);
3. Child's preferences (if old enough to express meaningful preference);
4. The child's best interests in all respects.

Extended Family: Guardianship often passes to grandparents, aunts, uncles, or older siblings who are willing and able to serve.

Unrelated Guardians: If no suitable family member is available, the court can appoint an unrelated guardian—often someone from a registered child welfare organization, or occasionally a friend of the family whom the parents trusted.

Ward of the State: If no suitable guardian can be found, the child becomes a "ward of the state" and is typically placed in state care or a licensed orphanage.

5.3 Guardianship of Abandoned Children

When a child is abandoned (parents unknown or have entirely ceased contact), the child is entitled to state protection and guardianship.

Discovery and Notification: When an abandoned child is found, authorities attempt to identify and locate the parents. If parents cannot be found or do not come forward within a specified period, the child is declared abandoned.

Court Declaration: A court formally declares the child abandoned and orders guardianship placement.

Guardianship Assignment: The child is typically placed with:

• A relative (if one comes forward and is suitable);
• A registered welfare organization or orphanage;
• A foster family approved by the state.

Rights of the Child: An abandoned child has the right to:

• Protection, care, and provision of basic needs;
• Education;
• A safe, nurturing environment;
• Opportunity for rehabilitation if previously abused.

Reunion with Parents: If a parent later comes forward and seeks to reclaim the child, courts consider whether reunion is in the child's best interests. If the child is settled and content with the current guardian, courts may decline reunion or condition it on demonstrated fitness and willingness to support the child.

Part 6: Guardianship Procedures and Judicial Process

6.1 Guardianship Applications

A guardianship can be established through:

Court Petition: Any interested person (potential guardian, relative, welfare organization) can petition the District Court for guardianship. The petition should:

• Identify the child and their parents' status (deceased, incapacitated, or fit to consent).
• Describe the proposed guardian and their relationship to the child.
• Explain why guardianship is necessary and why the petitioner is suitable.
• Detail the child's current situation and needs.

Parental Nomination: If a parent nominates a guardian in a will or through a written declaration, the nominated person can petition the court for confirmation.

Consent Guardianship: If both parents are living and fit, they can jointly petition for guardianship of their child to be formally established (for example, if they will be working abroad). This requires evidence that the proposed guardian is suitable and that the arrangement serves the child's interests.

6.2 Court Inquiry and Fitness Determination

Upon receiving a guardianship petition, the court:

1. Verifies the Child's Status: Confirms that the child requires a guardian (parents are deceased, absent, or unfit).

2. Investigates the Proposed Guardian: Through inquiry, social worker investigation, or other means, the court assesses:

   • Age, health, and capacity of the guardian;
   • Financial stability and ability to support the child;
   • Living arrangements and environment for the child;
   • Relationship with the child;
   • Any criminal history or history of abuse;
   • References or character assessments.

3. Considers the Child's Preference: If the child is old enough (typically 10+), the court may interview the child to ascertain preferences.

4. Checks for Other Suitable Guardians: Before appointing a guardian, the court verifies that no more suitable option exists (particularly a relative with superior claim).

5. Verifies Non-Exploitation: Courts are alert to exploitation risks—for example, a person seeking guardianship primarily to gain control of the child's property. Courts scrutinize motivations and take steps to protect the child's interests.

6.3 Guardianship Orders and Conditions

When the court is satisfied that guardianship is appropriate, it issues an order appointing the guardian. The order may include:

• Scope of Guardianship: What aspects of the child's life the guardian controls (personal welfare, property, education, medical decisions, etc.).

• Duration: Guardianship typically lasts until the child reaches age of majority (18 years), unless extended for specific reasons.

• Conditions: The court may impose conditions:

  • Regular reporting to the court about the child's welfare.
  • Restrictions on sale of the child's property.
  • Requirement to provide education.
  • Supervised access by a non-custodial parent or sibling.

• Succession Provisions: Nomination of a successor guardian if the current guardian dies or becomes incapable.

6.4 Modification and Termination of Guardianship

Guardianship can be modified if circumstances change significantly.

Grounds for Modification:

• The guardian becomes unfit (substance abuse, serious illness, criminal conduct).
• A more suitable guardian becomes available (a previously absent parent returns and is fit).
• The child's needs change (for example, a child with special needs requires a guardian with specialized capacity).

Procedure: The person seeking modification files an application in the same court. The court hears both the current guardian and the person seeking change, and decides based on the child's best interests.

Termination: Guardianship terminates when:

• The child reaches age of majority (18 years);
• The guardian is removed by court order;
• The child's parents are restored to guardianship (reconciliation of estranged parents, recovery of a previously incapacitated parent);
• The court determines that guardianship is no longer necessary.

Part 7: Custody Disputes—Modification and Relocation

7.1 Modification of Existing Custody

Custody orders, while binding, can be modified if significant changed circumstances warrant modification.

Changed Circumstances Standard: Courts will modify custody only if:

• Circumstances have changed substantially since the original order;
• Modification is in the child's best interests; and
• The benefits of modification outweigh the harm of disrupting the established arrangement.

Examples of Changed Circumstances:

• The custodial parent becomes unfit (substance abuse, criminal conduct, mental illness).
• The custodial parent's living situation becomes unsuitable (homelessness, incarceration, move to a dangerous area).
• The child's needs change (special needs requiring a different parent's capacity).
• A non-custodial parent becomes significantly more involved and stable.
• The child's adjustment or wellbeing deteriorates under current custody.

Examples of Insufficient Grounds for Modification:

• A new partner or spouse in the custodial parent's life (unless that person brings demonstrable harm).
• Preference of a young child for the other parent (unless reflecting mature judgment).
• One parent's superior finances or resources (unless the child's current parent cannot provide necessities).

7.2 Relocation of Custodial Parent

A common issue is whether a custodial parent can relocate (move to another city or country) with the child.

General Rule: A custodial parent has significant freedom to move (change residence), but this right is not absolute. A planned relocation that substantially impairs the non-custodial parent's visitation or the child's relationship with that parent may require court approval or modification of the arrangement.

Court's Inquiry:

• Reason for Relocation: Is it for legitimate purpose (job opportunity, family reunification, pursuing education) or motivated by desire to obstruct the other parent's relationship?
• Impact on Child: Will relocation harm the child's adjustment, education, or relationships?
• Impact on Other Parent's Relationship: Will it substantially reduce visitation and contact?
• Benefits to Child: Does relocation offer benefits (better schools, family support, economic opportunity) that outweigh disruption?

Possible Outcomes:

• Approval with Modified Visitation: The custodial parent can relocate, but visitation is adjusted (extended vacation time, video conferencing, occasional visits).
• Denial: The court prohibits relocation if it would substantially harm the child or the non-custodial parent's relationship, unless the relocation serves the child's compelling interest (such as medical treatment).
• Custody Transfer: In rare cases, if relocation is unjustified and harms the child, the court may transfer custody to the non-custodial parent.

7.3 Parental Alienation and Custody Interference

"Parental alienation" occurs when one parent actively works to damage the child's relationship with the other parent—through badmouthing, false accusations, preventing contact, or psychological manipulation.

Legal Consequences:

• Courts take parental alienation very seriously as evidence of unfitness for custody.
• A parent who engages in alienation may lose custody or have visitation modified.
• If one parent has obtained custody through false accusations that are later disproven, custody may be reassigned.

Evidence of Alienation:

• The child expressing animosity toward the other parent that is unexplained by actual harm.
• The custodial parent's statements denigrating the other parent.
• Unexplained prevention of contact despite valid visitation orders.
• Psychological testimony about the child's alienation not grounded in the other parent's actual conduct.

Counter-Strategy: A parent facing alienation should:

• Document all attempted contacts and responses received.
• Preserve any evidence of the other parent's alienating conduct (messages, testimony).
• Maintain involvement with the child despite barriers.
• File modification petitions to remedy custody if alienation is severe.

Part 8: Maintenance and Child Support Obligations

8.1 Duty to Maintain Children

Both parents have a legal duty to maintain (financially support) their children until majority (age 18 or sometimes beyond if the child is pursuing education or has disabilities).

Scope of Maintenance:

• Food, clothing, and basic necessities;
• Housing;
• Healthcare and medical expenses;
• Education;
• Reasonable assistance into adulthood (though not indefinite support).

Who Pays Maintenance:

• Typically, the non-custodial parent (the parent without primary custody) pays maintenance to the custodial parent to support the child's care.
• If parents share custody roughly equally, neither pays substantial maintenance; each bears costs for the child during their custody time.

8.2 Calculation of Maintenance

Maintenance is calculated considering:

• Income of Both Parents: Salaries, business income, investment income, and earning potential.
• Number and Age of Children: More children or younger children increase maintenance obligations.
• Standard of Living: The maintenance should maintain the child's customary standard of living.
• Each Parent's Other Obligations: If a parent supports other dependents, this may reduce their maintenance obligation.
• Custody Arrangement: The primary custodian's costs are considered (housing, etc.).

Guidelines: While not binding, some courts use informal guidelines such as:

• 15-20% of income for one child;
• 25-30% of income for two children;
• 30-40% of income for three or more children.

However, courts adjust these based on the specific circumstances of the case.

8.3 Duration and Modification of Maintenance

Duration: Child maintenance typically continues until the child reaches 18 years (age of majority). It can extend beyond 18 if:

• The child is pursuing full-time education;
• The child has disabilities or special needs preventing self-support;
• The parents have agreed to extended support.

Modification: Maintenance can be modified if circumstances change:

• Increased Income: If a parent's income substantially increases, maintenance may increase.
• Job Loss or Income Reduction: If a parent loses employment, maintenance may be reduced or suspended temporarily.
• Child's Needs Change: If the child has special needs or increased educational expenses, maintenance may increase.
• Custody Change: If custody changes, the maintenance obligation may shift to the other parent.

8.4 Enforcement of Maintenance

If a parent fails to pay maintenance:

• Contempt Proceedings: The custodial parent can file contempt charges, and the non-paying parent can face penalties.
• Wage Garnishment: Court can order the employer to deduct maintenance directly from the non-paying parent's salary.
• Lien on Property: A lien can be placed on the non-paying parent's property to secure unpaid maintenance.
• Suspension of Rights: In some jurisdictions, failure to pay can result in suspension of a driver's license, professional license, or passport.

Part 9: Child Protection and Abuse Prevention

9.1 Child Abuse and Custody Implications

Child abuse (physical, sexual, or emotional) is grounds for immediate loss of custody and often criminal prosecution.

Types of Abuse:

• Physical Abuse: Hitting, beating, burning, or other violence causing injury.
• Sexual Abuse: Sexual contact with a child or sexual exploitation.
• Emotional Abuse: Sustained psychological harm through threats, humiliation, or deprivation.
• Neglect: Failure to provide food, shelter, healthcare, or supervision.

Custody Consequences:

• A parent who has abused a child will lose custody.
• Visitation may be suspended or allowed only under supervision.
• In severe cases, the abuser loses parental rights entirely.

9.2 Domestic Violence and Custody

While domestic violence between spouses does not directly involve the child, exposure to domestic violence harms children psychologically, even if they are not directly harmed.

Custody Implications:

• A parent who perpetrates domestic violence is scrutinized for whether they can safely parent.
• If the violent parent has harmed the other parent, courts question whether the child is safe in their care.
• Custody may be awarded to the non-violent parent, or visitation may be supervised.
• In some cases, the perpetrator of domestic violence loses custody.

Protection Orders: Courts can issue orders protecting the child and the non-violent parent from further violence or contact.

9.3 Child Welfare Agencies and Intervention

If a child is being abused or neglected, child welfare authorities can intervene even without parental agreement or court order.

Authority: Under the Children Act 2075 and other child protection statutes, authorized agencies (social workers, child protection officers) can:

• Investigate reports of abuse or neglect;
• Remove a child from unsafe situations;
• Place the child in protective care;
• Initiate court proceedings for the child's protection.

Parental Rights Limits: Parental authority does not permit abuse or neglect. The state can override parental authority to protect the child.

9.4 Child Witness in Custody Proceedings

When a child may have witnessed abuse or has information relevant to custody, careful procedures are used to protect the child.

Interview Procedures: Child interviews are conducted by trained professionals in child-friendly settings, with sensitivity to the child's developmental stage.

Testimony: Young children rarely testify in court. Older children may, but with protections:

• Closed-circuit testimony (the child testifies from another room via video);
• Screen shielding the child from the alleged abuser;
• Support person (therapist, counselor) present;
• Sensitive questioning.

Part 10: Practical Guide for Lawyers Handling Custody and Guardianship Cases

10.1 Initial Client Consultation Checklist

When representing a client in custody or guardianship matters, conduct a comprehensive intake:

Client and Child Information:

• Full identification of client, child, and all parties claiming custody or guardianship rights.
• Child's age, date of birth, and current health status.
• Identity and location of other parent.
• History of living arrangements (where has the child lived, for how long, with whom).

Current Custody Arrangement:

• Formal custody order (if any), date issued, terms.
• De facto arrangement (who is currently caring for the child).
• Visitation arrangement (if applicable).
• Any violations of court orders.

Child's Best Interests Factors:

• Child's age, maturity, and expressed preferences.
• Child's relationship with each parent/caregiver.
• Child's schooling, friends, and community ties.
• Health and special needs of the child.
• Any history of abuse, neglect, or safety concerns.

Each Party's Circumstances:

• Employment and income of each parent.
• Living arrangement and stability.
• Health, substance abuse history, criminal history.
• Involvement in child's life, caregiving responsibility.
• Relationship quality with the child.

Legal Claims:

• What is the client seeking (initial custody, modification, visitation expansion)?
• What grounds support the request?
• What defenses or counterclaims might the other party raise?

10.2 Evidence Gathering Checklist

Establishing the Child's Best Interests:

• School records documenting child's progress and attendance.
• Medical records documenting child's health and any special needs.
• Evidence of child's attachment to each parent (photos, videos, testimony).
• Records of involvement in activities, sports, cultural events.
• Character references about each parent's parenting.

Documenting Caregiving:

• Records showing who has provided day-to-day care (school pickups, doctor visits, meal preparation).
• Bank records showing who has paid for child's expenses.
• Tax records showing who has claimed the child as a dependent.
• Testimony from relatives, teachers, or neighbours about caregiving roles.

Establishing Fitness or Unfitness:

• Employment history and current employment documentation.
• Housing documentation (lease, deed, utility bills).
• Criminal background check results.
• Any court orders regarding the parent (restraining orders, child protection orders).
• Medical or psychological evaluations (if relevant).
• Substance abuse screening or treatment records.

Addressing Safety Concerns:

• Police reports of domestic violence or child abuse.
• Child protective services investigation reports.
• Medical reports of injuries consistent with abuse.
• Testimony from witnesses to abusive conduct.
• Restraining orders or protective orders.

10.3 Case Strategy by Issue

Seeking Custody (Initial):

• Focus on demonstrating the child's best interests (stability, needs, relationships).
• Show the client's fitness and commitment to parenting.
• Address any safety concerns about the other parent.
• Consider proposing a realistic arrangement that respects both parents' relationships (unless safety precludes this).

Seeking Modification of Custody:

• Establish changed circumstances since the original order.
• Show how the change benefits the child or prevents harm.
• Address the other party's likely arguments that the child is stable and change is disruptive.

Defending Custody:

• Demonstrate that the current arrangement is functioning well for the child.
• Address allegations by showing that concerns are overstated or unfounded.
• If proposing visitation expansion, do so carefully to avoid appearing to seek to undermine the other parent's custody unnecessarily.

Seeking or Resisting Guardianship:

• Emphasize or challenge the proposed guardian's fitness and suitability.
• Present the child's best interests analysis.
• If the child has expressed preferences, present this evidence carefully, age-appropriately.

10.4 Protecting the Child During Proceedings

• Minimize the child's involvement in litigation (avoid putting the child in position of choosing between parents).
• Use court-appointed evaluators or mediators to assess the child's interests rather than relying solely on each party's claims.
• Seek interim protective orders if there are safety concerns (supervision, no overnight visitation, etc.).
• Encourage parents to cooperate for the child's sake, even if the marriage has failed.
• Consider child therapy or counseling if the child is stressed by the custody dispute.

10.5 Settlement Negotiation in Custody Cases

• Explore custody arrangements that maximize the child's contact with both parents (unless safety precludes this).
• Propose specific, detailed visitation schedules that are realistic and stable.
• Address parental decision-making authority clearly (joint or primary parent with consultation).
• Include provisions for dispute resolution if future disagreements arise.
• Consider implementing a gradual transition if a major change is planned.
• Document any agreements carefully to prevent future disputes.

Part 11: Recent Developments and Current Trends

11.1 Recognition of Non-Parental Guardianship

Modern Nepali law increasingly recognizes that non-parental guardians (grandparents, aunts/uncles, family friends, welfare organizations) can serve as primary guardians or custodians.

Drivers:

• Migration: Parents work abroad and need care arrangements for children.
• Death: Children lose parents and are raised by relatives or state institutions.
• Separation/Divorce: Non-parental caregivers sometimes provide de facto care.

Legal Framework: The Civil Code 2074 provides detailed procedures for establishing and modifying such guardianship, recognizing that non-parental care is sometimes optimal.

11.2 Increasing Recognition of Paternal Involvement

While mothers have historically been the assumed primary caregivers, modern Nepali courts increasingly recognize that fathers can be equally capable parents. Courts evaluate fathers on the same standards as mothers—fitness, involvement, caregiving capacity—without gender-based presumptions.

Implications:

• A father who has been the primary caregiver (in the absence of or alongside a mother) is not at a disadvantage.
• A mother cannot automatically assume custody merely because she is the mother; she must demonstrate fitness.

11.3 Children's Rights and Child-Centered Perspectives

Modern Nepali law increasingly places the child at the center, not the parents. Courts increasingly ask: What does this child need? What arrangement serves this child's welfare? Rather than: What do the parents want? What are their rights?

This shifts focus from parental entitlements to child welfare and aligns with international conventions (UN Convention on the Rights of the Child).

11.4 Specialized Child Courts and Mediation

Some jurisdictions now have specialized child courts or trained judges handling child-related cases. Additionally, mediation services for custody disputes help parents cooperate and craft arrangements that serve children's interests.

Conclusion: The Primacy of the Child's Welfare

Child custody and guardianship law in Nepal has evolved significantly toward a child-centered, welfare-focused approach. No longer is custody viewed primarily as a parental right or entitlement; instead, it is understood as a responsibility undertaken for the child's benefit.

For lawyers representing parties in custody and guardianship disputes, success lies not in winning a dispute between parents but in crafting and advocating for arrangements that genuinely serve the child's welfare. This requires:

• Understanding the child: Age, needs, relationships, preferences, and vulnerabilities.
• Assessing each party's fitness: Realistically evaluating capacities, not exaggerating or minimizing.
• Being honest: If the client's proposed arrangement is suboptimal, saying so; advising settlement rather than litigation if custody litigation will harm the child.
• Thinking creatively: Proposing arrangements (shared custody, visitation expansion, mediation) that serve the child's interests while respecting both parents' roles.
• Protecting the child: Ensuring that the child is not exposed to abuse, neglect, or the stress of bitter custody litigation.

A lawyer who approaches custody cases with the goal of serving the child's best interests, rather than maximizing the client's parental authority, will build strong, sustainable custody arrangements and contribute to the goal that every child in Nepal is protected, cared for, and given the opportunity to thrive.