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Child Custody After Divorce in Nepal 2026 — Section 115 Guide

Child Custody After Divorce in Nepal 2026 — Section 115 Guide
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The single most damaging misconception in Nepali custody work is that physical custody and child maintenance follow a single combined rule. They do not. Under Section 115 of the Civil Code 2074, a child under five lives with the mother — but the maintenance, education and healthcare obligations for the same child are addressed separately, with the custodial parent carrying primary responsibility and the non-custodial parent contributing financially under Section 116 where their earning capacity is higher. Section 115(5) supplies the default rule when the separated parents have not agreed (under 5 → mother; 5 to under 10 → father by default; 10+ → child's choice). Parents who conflate physical custody with the support obligation routinely lose three to six months litigating the wrong claim. The FWLD–UNICEF review of district-court custody files (2021) flagged this confusion as the single most common procedural error in family benches across the Kathmandu Valley. See our family-law practice area for related matters.

This guide is the 2026 (2083 BS) framework for child custody after divorce in Nepal — read under Civil Code 2074 Sections 114-118, layered with the Children's Act 2075 (2018) welfare overlay, and grounded in Supreme Court precedent. If you are still inside the divorce file itself, read our companion divorce process in Nepal guide first; custody is decided alongside partition and alimony in the same proceeding, not afterwards.

Quick answer — Child custody after divorce in Nepal (2026):

  • Under 5: Physical custody with the mother under Section 115(1)(a) — even if the mother has remarried.
  • Age 5–10: Mother retains physical custody under Section 115(1)(b) unless she has remarried; if remarried, custody shifts to the father.
  • 10 and above: The court considers the child's expressed preference under Section 115(3).
  • Section 115(5) — default allocation where parents have not agreed: Under the verbatim statutory text, in the absence of an agreement between separated spouses, the minor below 5 years is in the mother's custody, a minor aged 5 to under 10 is in the father's custody, and a minor of 10 years or above lives with whichever parent the child chooses. The custodial parent is then responsible for the child's maintenance, education and healthcare; the non-custodial parent contributes financially if their earning capacity is higher (Section 116). Many practitioners frame Section 115(5) as a "maintenance distinction" — the statutory text is wider and covers default custody as well as the support obligations flowing from it.
  • Joint custody: Permitted under Section 115(2) only by mutual agreement of both parents.
  • Visitation (Section 117): The non-custodial parent retains a statutory right of access; denial without cause is a modification ground.
  • Duties (Section 118): Parental obligations survive divorce — both parents owe health, education and care.

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What does "custody" actually mean under Nepal law?

Custody in Nepali family law is not one right but four distinct strands, each of which can be allocated to a different parent in the same decree. Physical custody is the day-to-day residence of the child — who the child lives with on a school night. Legal custody is the authority to take major decisions on schooling, religion, medical treatment, and passport applications. Joint custody under Section 115(2) is the rarer pattern in which parents agree to share both strands. Visitation under Section 117 is the statutory access right of the parent who does not hold physical custody.

A typical post-divorce decree in 2026 allocates physical custody to one parent under the Section 115(1) age-band rule, leaves legal custody joint in practice unless one parent is found unfit, fixes a visitation schedule under Section 117, and orders maintenance under Section 115(5). The four pieces should be read together — never in isolation.

How does Section 115 actually work?

The statute reads as a sequence of age-band defaults. Each band assigns physical custody, and a separate sub-section assigns the maintenance obligation. Confusing the two is the most common procedural error in family-court files.

Section 115(1)(a) — children under five

The mother holds physical custody. The presumption applies even if the mother has remarried — the legislature treats infant-stage maternal care as the controlling welfare interest. The exception is judicial unfitness, which must be proved: substance dependence, mental incapacity to provide care, established abandonment, or a documented pattern of neglect or violence. Petitioner-fathers carry the evidentiary burden, and the bar is high.

Section 115(1)(b) — children aged 5 to 10

The mother retains physical custody during this band unless she has remarried. Remarriage is the single most common ground on which custody shifts to the father at this age. Where the mother remains single, the father can still seek custody but must clear the unfitness threshold above.

Section 115(3) — children aged 10 and above

The child's expressed preference becomes a recorded factor. The court does not put the child on the witness stand in open hearing; the preference is taken in a child-friendly chambers setting, and the judge weighs it alongside the best-interest analysis. A mature 14-year-old's clearly-reasoned preference is rarely overridden absent serious welfare concerns about the chosen parent.

Section 115(2) — joint custody by agreement

Parents may agree to a joint custody arrangement, in which case the court records the schedule in the decree. Joint custody is not court-imposed — it requires actual mutual consent of both parents. In contested files, joint custody is rare because mediation has usually failed by the time the court is deciding.

Section 115(5) — the maintenance distinction

This is the sub-section parents and even some practitioners routinely misread. Section 115(5) sets the financial-contribution obligation, which runs on a different schedule from physical custody under Section 115(1):

  • Under 5: the mother provides maintenance — the child lives with her and she meets the cost.
  • 5 to 10: the father provides maintenance — even though the child usually still lives with the mother under Section 115(1)(b).
  • 10 to 18: the parent the child has chosen (under Section 115(3)) carries the maintenance obligation.

The practical consequence: a mother who has physical custody of a seven-year-old under Section 115(1)(b) is entitled to maintenance from the father under Section 115(5). Filing the custody petition without simultaneously claiming Section 115(5) maintenance leaves money on the table and forces a fresh application. The Forum for Women, Law and Development's 2021 review of district-court orders found that more than a third of custody decrees omitted the Section 115(5) maintenance award entirely, almost always because counsel did not plead it.

What does the Children's Act 2075 add on top?

The Children's Act, 2075 (2018) is the welfare overlay that sits above the Civil Code. It is not a replacement framework — it is a set of welfare-driven principles a court must apply when reading Section 115. Three provisions matter most:

  • Best interest as the supreme test — section 7 of the Children's Act and Article 39 of the 2015 Constitution together convert "best interest" from a guideline to a constitutional standard. Where Section 115 default and the child's best interest diverge, the best interest controls.
  • Right to be heard — children of sufficient maturity have a statutory right to express views in proceedings affecting them, reinforcing Section 115(3).
  • Economic contribution under section 7 — both parents are obliged to contribute to the child's upbringing in proportion to their economic condition, which courts read into the Section 115(5) maintenance amount.

For a fuller treatment of the welfare framework, see our explainer on the Children's Act of Nepal 2018.

How does the court actually decide — the best-interest factors

The age-band defaults under Section 115(1) yield to a best-interest analysis whenever evidence is led on either parent's fitness. Practising family benches at Kathmandu, Lalitpur and Bhaktapur District Courts weigh roughly the same eight factors:

  • Stability of residence — continuity of school, neighbourhood, and primary caregiver.
  • Economic capacity — read with Section 115(5); the parent with custody must be able to provide a home, the other a maintenance contribution.
  • Emotional bond — pre-divorce caregiving pattern, demonstrated by school records, medical visits, and witness affidavits.
  • Health and character of each parent — substance dependence, mental incapacity, criminal record, history of domestic violence.
  • Sibling unity — siblings are kept together unless evidence makes separation necessary.
  • Child's expressed preference — controlling above 10 under Section 115(3), advisory below.
  • Extended-family support — grandparents and immediate relatives the child knows well.
  • Risk of relocation or abduction — especially in NRN files, the court weighs the risk that the chosen parent will remove the child outside the court's jurisdiction.

What does Supreme Court precedent say?

Custody case law is now substantial enough to shape practice across district courts. Five decisions in particular are routinely cited:

  • Dr. Alokraj Chalise v. Siru Chalise (NKP 2053) — established that a habeas corpus writ cannot be issued against a mother holding her own under-five child, sealing Section 115(1)(a) at constitutional level.
  • Satyavati Chalise (NKP 2061) — confirmed the best-interest standard as the controlling test even where statutory defaults pointed elsewhere.
  • Mallika Shah v. Atul Shah (NKP 2068) — confirmed that visitation under Section 117 cannot be unilaterally denied by the custodial parent and that denial is a modification ground.
  • Shova Shrestha v. Maya Tamang (NKP 2071) — upheld a custody arrangement where a 12-year-old expressed clear preference for the father's trusted relative over either biological parent; the Section 115(3) preference controlled.
  • Harikrishna Subedi v. Shrijaya Karki (NKP 2076) — affirmed the best-interest standard as supreme over rigid age-band application, particularly where one parent's economic capacity was substantially lower.

Two recent High Court decisions are also worth noting for NRN files: Nilam Subedi v. Shambhu Raut (HC Patan 2077) awarded custody to the father in Nepal where the mother had moved to Canada, treating physical-presence stability as the controlling welfare factor; and Biraj Nagarkoti v. Krishna Umari Shrestha (Bhaktapur DC 2077) allowed a child to remain with maternal grandparents in Nepal even where the mother had relocated to Australia, reading "primary caregiver continuity" into best-interest analysis.

How does custody work for NRN and cross-border families?

Cross-border custody is the fastest-growing slice of family-court work in Nepal. The fact pattern is familiar — one parent in Kathmandu, the other in the Gulf, Australia, North America or the UK. The risk pattern is also familiar: removal of the child to the foreign jurisdiction before the Nepali decree, after which recovery becomes extraordinarily difficult because Nepal is not a party to the Hague Child Abduction Convention.

The practical workflow: the NRN parent engages Nepali counsel and signs a Power of Attorney at the Nepali embassy in the country of residence. Counsel files the custody petition (often combined with a Section 117 visitation petition) at the District Court where the child resides. Where there is a credible risk of removal, counsel applies for an interim travel-restraint order at the same time as the main petition. The non-resident parent then participates by video link through the trial. Recognition of a foreign custody order in Nepal requires a separate recognition petition; foreign orders are not automatically enforceable.

What grounds support modification of a custody order?

Custody decrees are not final. A District Court may modify the order on a changed-circumstances petition at any time. The threshold is "material change" — courts will not re-open settled custody on minor disputes. Common modification grounds in practice:

  • Relocation of the custodial parent, especially outside the court's territorial jurisdiction.
  • Remarriage of the mother, where the original order was made under Section 115(1)(b).
  • Established neglect, abuse, or substance dependence of the custodial parent.
  • The child reaching age 10 and expressing a preference inconsistent with the existing order.
  • Material change in the economic capacity of either parent, often paired with a Section 115(5) maintenance revision.
  • Persistent denial of visitation under Section 117, which itself is a modification ground.

What about enforcement when one parent does not comply?

The custody decree is enforceable through the same District Court that issued it. Where the non-custodial parent denies visitation, the custodial parent files a contempt application; where the custodial parent denies visitation, a Section 117 enforcement petition. Maintenance arrears under Section 115(5) are recoverable by attachment of salary or property. Where a parent has removed the child without authority, the custodial parent files a habeas corpus writ petition at the High Court, although the writ does not run against the mother of an under-five child (Dr. Alokraj Chalise v. Siru Chalise).

How does Alpine Law Associates handle a custody file?

Alpine Law Associates runs custody alongside the underlying divorce or partition where one is pending, and as a stand-alone file where the divorce decree has already issued. The intake assesses age-band default, fitness disputes, NRN exposure, and the child's expressed preference where relevant. Counsel builds the welfare evidence — school records, medical history, caregiver affidavits — before the petition is filed, because in a custody contest the evidence that arrives with the petition carries more weight than evidence filed midway through the trial.

For NRN clients, the file is run through our diaspora desk — embassy POA, video-link participation, interim travel restraint, and where needed coordination of recognition proceedings for foreign decrees. For local files where the Section 115 default is contested, the file is run by a trial counsel with district-court experience at the filing court. The two engagements look very different and are not interchangeable.

Common mistakes parents make in custody after divorce

  • Filing custody without Section 115(5) maintenance — the FWLD-flagged error; leaves the child's economic support unaddressed and forces a fresh petition.
  • Treating Section 115(1) as absolute — the age-band rule yields to best-interest evidence; petitioner-fathers who lead clean welfare evidence on a mother's unfitness routinely succeed.
  • Removing the child to a foreign jurisdiction before the Nepali decree — converts a winnable custody case into a recovery action under writ jurisdiction.
  • Denying visitation as leverage — counter-productive; Section 117 denial is itself a modification ground against the custodial parent.
  • Asking the child to choose in front of the other parent — courts read this as coaching and discount the child's stated preference.
  • Skipping the welfare-officer report — a court-ordered welfare assessment usually controls outcomes in contested files; refusing or obstructing the visit damages credibility.

Frequently Asked Questions

Child custody after divorce in Nepal is decided under Civil Code 2074 Sections 114-118, read with the Children's Act 2075 and the constitutional best-interest standard. The court applies the Section 115 age-band default — mother for under-fives under Section 115(1)(a), mother for 5–10 unless remarried under Section 115(1)(b), the child's preference at 10 and above under Section 115(3) — and then yields to best-interest evidence where either parent leads it. Maintenance is allocated separately under Section 115(5).

Physical custody under Section 115(1) is who the child lives with day to day. Maintenance under Section 115(5) is who pays for the child's upbringing. The two run on separate schedules: a mother with physical custody of a seven-year-old under Section 115(1)(b) is entitled to maintenance from the father under Section 115(5). Conflating the two is the single most common procedural error in custody files and routinely costs parents three to six months of litigation.

For an under-five child, yes — Section 115(1)(a) gives physical custody to the mother even if she has remarried. For a child aged five to ten, remarriage is the explicit statutory ground under Section 115(1)(b) on which physical custody shifts to the father. For a child aged 10 and above, the child's expressed preference under Section 115(3) carries the issue and remarriage is one of several factors the court considers, not a deciding event by itself.

Section 115(3) of the Civil Code 2074 makes the child's preference a recorded factor from age 10. The preference is taken in a child-friendly chambers setting, not in open court, and the judge weighs it alongside the best-interest analysis. A mature 14-year-old's clearly-reasoned preference is rarely overridden absent serious welfare concerns about the chosen parent.

It is difficult but not impossible. The default under Section 115(1)(a) is that the mother retains physical custody of an under-five child even if she has remarried. A father can displace the default only by leading clean evidence of judicial unfitness — substance dependence, mental incapacity, established abandonment, or a documented pattern of neglect or violence. The Supreme Court in Dr. Alokraj Chalise v. Siru Chalise confirmed that even a habeas corpus writ cannot be issued against a mother of her own under-five child.

Joint custody under Section 115(2) is a custody arrangement in which both parents share physical and legal responsibility, with the schedule recorded in the divorce decree. It is granted only by mutual agreement of both parents — the court does not impose joint custody on parents who cannot agree. In practice joint custody is uncommon in contested files because mediation has usually failed by the time the court is deciding custody.

Section 117 gives the non-custodial parent a statutory right of access to the child. The court fixes a visitation schedule in the decree — typical patterns are alternate weekends, half of school holidays, and split major festivals — though parents may agree on a tighter or looser pattern. The custodial parent cannot unilaterally deny visitation; denial without cause is itself a ground for the non-custodial parent to seek modification of custody.

Yes — Section 118 of the Civil Code 2074 is explicit that parental duties of care, education, health, and economic support survive the divorce decree. The non-custodial parent does not become a stranger to the child. Section 118 is the statutory anchor that underpins both the maintenance obligation under Section 115(5) and the visitation right under Section 117, and it is read alongside the Children's Act 2075 welfare overlay.

Section 115(5) does not fix a tariff. The court sets the maintenance amount on a needs-and-means assessment: the child's reasonable cost of education, healthcare, food, clothing and incidentals, scaled to the paying parent's economic capacity under section 7 of the Children's Act 2075. Awards are usually monthly and indexed where the paying parent has stable income; in irregular-income files, the court may order a periodic lump sum. The amount is revisable on a changed-circumstances petition.

The petition is filed at the District Court where the child ordinarily resides. Where the custody question is part of a pending divorce, it is filed in the same file at the same District Court rather than as a separate case. NRN parents file at the District Court where the child lives in Nepal — not at the District Court of the parent's hometown.

The district-court average for a contested custody file is 9–18 months when filed as a stand-alone case. Where custody runs alongside a contested divorce, the timeline tracks the divorce — typically 18–24 months. Custody files supported by clean welfare evidence and a co-operative welfare-officer assessment close materially faster than files where caregiving evidence has to be reconstructed mid-trial.

Yes. A District Court may modify the custody order on a changed-circumstances petition at any time. Common modification grounds are relocation of the custodial parent, remarriage of the mother under Section 115(1)(b), established neglect or abuse, the child reaching age 10 and expressing a different preference under Section 115(3), material change in economic capacity, and persistent denial of visitation under Section 117. The burden is on the parent seeking modification to prove the material change.

Removal of a child outside Nepal without the other parent's consent is a serious legal issue. Nepal is not a party to the Hague Child Abduction Convention, so recovery from a foreign jurisdiction is extraordinarily difficult once the child has been removed. The custodial parent's remedies are a habeas corpus writ at the High Court, an Interpol Yellow Notice via Nepal Police, and diplomatic-channel coordination through the Ministry of Foreign Affairs. The right move is to apply for an interim travel-restraint order before removal happens.

The NRN parent engages Nepali counsel and signs a Power of Attorney at the Nepali embassy in the country of residence. Counsel files the custody petition at the District Court where the child resides. Where there is a credible risk of removal, counsel applies for an interim travel-restraint order at the same time. The NRN parent participates by video link through the trial. Foreign custody orders are not automatically enforceable in Nepal and require a separate recognition petition.

Yes, in specific situations. Where both parents are deceased or both are found unfit, grandparents are natural candidates for guardianship. Even where a parent is alive, the court may award custody to grandparents under best-interest analysis if neither parent can provide proper care — Biraj Nagarkoti v. Krishna Umari Shrestha (Bhaktapur DC 2077) allowed a child to remain with maternal grandparents where the mother had relocated to Australia. Grandparents file a guardianship petition at the District Court with welfare evidence.

It does not replace Section 115 — it sits above it as a welfare overlay. The Children's Act 2075 (2018) section 7 and Article 39 of the 2015 Constitution together convert best interest from a guideline to a constitutional standard. Where the Section 115 age-band default and the child's best interest diverge, the best interest controls. In practice this means the court reads Section 115 as the starting point and then applies the welfare overlay to fit the facts of the file.

No. Where the child is 10 or above and Section 115(3) is engaged, the court takes the preference in a child-friendly chambers setting, not in open court and not in front of either parent. The judge meets the child privately, sometimes with a welfare officer present, and records the preference. Asking the child to declare a choice in front of either parent is read by the court as coaching and weakens the eliciting parent's case rather than strengthening it.

In contested custody files the District Court routinely orders a welfare assessment in which a court-appointed officer visits both parental homes, interviews the child where age-appropriate, and reports on caregiving, environment, and bonding. The welfare-officer report frequently controls the outcome in close cases. Refusing or obstructing the visit damages credibility, and the resulting report often determines whether the Section 115 default holds or yields.

A custody counsel evaluates the Section 115 age-band default, builds the welfare evidence file (school records, medical history, caregiver affidavits, witness statements), drafts the petition combining custody under Section 115 and maintenance under Section 115(5), applies for any interim relief (travel restraint, interim maintenance), represents the client through mediation and trial, presents the child's voice through chambers proceedings where applicable, and runs post-decree enforcement, modification or High Court appeal within the 35-day window.

The custodial parent files an enforcement application at the same District Court that issued the decree. Available remedies include attachment of salary at source for employed parents, attachment of property and bank accounts for self-employed parents, contempt proceedings, and a separate criminal complaint where willful default is established. Maintenance arrears accumulate at the decreed rate until paid, and the court can convert them into a recoverable lump-sum order.

Not automatically. A foreign custody order needs a recognition petition filed at the District Court where the child resides, supported by the certified foreign judgment, an authenticated translation, and proof that both parents received notice in the foreign proceeding. Without recognition the Nepali court treats the custody position as open and decides afresh under Section 115. Recognition is a discrete engagement and should be filed before any modification claim.

The District Court routinely refers custody cases to court-annexed mediation before trial, particularly where both parents are present and represented. A mediated settlement is recorded in the decree and is enforceable as a court order. Mediation is most productive where the dispute is on schedule and visitation rather than on the Section 115 default itself; fitness disputes rarely resolve in mediation and proceed to trial.

Section 115 is framed around children of the marriage being dissolved. For children born outside marriage, the Civil Code provisions on paternity (Sections 109-113) apply first to establish the legal relationship, after which the welfare framework of the Children's Act 2075 governs custody on best-interest principles. The age-band defaults of Section 115(1) are read by courts as persuasive even outside the strict Section 115 fact pattern.

Either parent may appeal the District Court custody decree to the High Court within 35 days of pronouncement under the National Civil Procedure Code 2074. The High Court reviews the record, the welfare-officer report, and the child's chambers statement where one was recorded, and may affirm, vary or remit the order. A modification petition on changed circumstances is filed at the original District Court, not at the High Court, and may be filed at any time after the decree.

Alpine Law Associates runs custody files with phase-specific lead counsel — a family-law partner for Section 115 analysis and evidence build, a trial counsel for the welfare-officer engagement and contested hearings, and an NRN-desk counsel for embassy POA chains, video-link participation and travel-restraint applications. We hold custody alongside the underlying divorce, partition, and any criminal lines without you switching counsel. Speak with our lawyers today →

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This article is intended solely for informational purposes and should not be interpreted as legal advice, advertisement, solicitation, or personal communication from the firm or its members. Neither the firm nor its members assume any responsibility for actions taken based on the information contained herein.

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