Child Custody

Child Custody

Child Custody

The question of child custody arises when the issue of divorce is invoked in the court of law between the spouses. Besides this, child custody is also an issue in void and voidable marriage. Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of parent to make decisions for the child, and the parent’s duty to care for the child. The custody of the child depends on age and interest of children as well as the economic and mental condition of parents who are legally separated or divorced. In such case, the judge will decide custody based on the best interest protection of the children. Civil Code, 2074 makes legal provision on child custody.

To be under the custody of mother or father

Section 115 says that if matrimonial relationship between a husband and wife is terminated in accordance with the law, the child born from them shall remain in the custody of the mother or father as provided below: –

  • The child who has not attained 5 years of age remains under the custody of the mother as per her desire, irrespective of whether or not she has concluded another marriage,
  • The child who is above 5 years of age remains under the custody of the mother if the mother desires except the mother has concluded another marriage,
  • In the circumstances other than (a) and (b), the child remains under the custody of the father.

Care and maintenance of child

Section 116 says that the parent under whose custody the child is, has the obligation to take care of and maintain and if the income of the parent who has not taken the custody is higher than the parent under whose custody the child, such a parent has obligation to provide expenses for maintenance, education and treatment of the child. Section 117 has provided the right to the child to visit to the father if the child is living with the mother and to visit to the mother if he or she is living with the father and etc.

Facility of visit

According to section 117, if the matrimonial relationship has been extinguished or the mother and the father are living separately in accordance with the law, the child is provided with the right to visitation, from time to time. If the child is living with the mother then he can visit to his father and if the child is living with the father, then he can visit to the mother. And the child can also stay with either of them for some time with the consent of the mother and father. The father or mother taking the custody shall take care of and maintain him or her.

The existence of the right of the child

Though the relationship of the husband and wife has been extinguished, the legal rights of the child from his or her mother or father remains in existence according to section 118.

The child is not allowed to live separately without the consent of his or her father or mother. But in the following circumstances the son or the daughter can live separately:

  • If he or she is separated from his or her father, mother, with or without obtaining partition as per law,
  • If he or she concludes marriage,
  • If he or she attains at least 21 years of age,
  • If he or she is already employed.

As per section 120, a minor who is allowed to be engaged in a work as a labor according to law cannot work as a labor without consent of the mother, father, other guardian or curator.

As per section 121, if there arises any dispute between the father and the mother whose matrimonial relationship has been extinguished as per the law, have to decide in respect of interest of child, the decision may be made by the father or mother under whose custody the child remains.

Duty of the son and daughter

The son and the daughter have the duty to treat his or her father and mother with honor and respect. The son or daughter has duty to provide necessary care, maintenance, medical treatment or attention according to his or her financial and social status.

Limitation

Any person who has been aggrieved from any act done or action taken, can make a lawsuit within six months after the date on which such act was done or action was taken.

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