What types of custody are there?
Joint custody is when custody is given to both parents and the child has frequent and continuing contact with each parent. The judge can award joint physical custody, joint legal custody, or both. If the judge does not award joint custody, the judge is supposed to specifically explain the reasons for not granting joint custody.1
There are two parts of joint custody:
- Joint physical custody is when both parents have the child under their care and supervision or living with them for significant periods of time. However, although the child is supposed to have frequent and continuing contact with both parents, it does not necessarily mean the child will spend equal time with each parent.
- Joint legal custody means that the parents share the decision-making rights, responsibilities, and authority relating to the child’s health, education, and general welfare.2
Sole legal custody is when only one of the parents has the decision-making rights, responsibilities, and authority relating to issues concerning the health, education and welfare of the child. Sole physical custody is when the child mostly lives with one parent but the other parent can still have visitation rights.
The judge is supposed to assume that joint custody is in the best interests of the child unless there is a “preponderance of the evidence” that proves otherwise. For example, if one parent has been found to have committed domestic violence multiple times (“habitually”), the judge is supposed to assume that joint custody is not in the child’s best interests and can grant sole custody to the non-abusive parent.3 It’s also possible that the judge can order supervised visitation or supervised exchanges of the child through a supervised access provider.4
1 I.C. § 32-717B(1)
2 I.C. § 32-717B(2), (3)
3 I.C. § 32-717B(4), (5)
4 See I.C. § 32-717E
What is the role of a parenting coordinator?
At the judge’s discretion, the judge can appoint a parenting coordinator to help the parents resolve parenting disputes that arise over time. The parenting coordinator is supposed to help empower the parents and minimize the degree of conflict between them. The fees and costs of the parenting coordinator are usually divided between the parents by the judge.1
The parenting coordinator has to provide at least one status report to the judge every six months.2
1I.C. § 32-717D(1), (3), (4)
2 I.C. § 32-717D(1)
Who can file for custody?
Either or both parents can file a custody petition or a “de facto custodian” can file for custody.1 A de facto custodian is someone who:
- is related to the child within the third degree of consanguinity, such as an uncle or great-grandparent; and
- has been the primary caregiver for, and primary financial supporter of, the child and has lived with the child without the child’s parent being present and with a “lack of demonstrated consistent participation” by the parent for a period of:
- six months or more if the child is under three years of age; or
- one year or more if the child is three years of age or older.2
A person cannot be considered a de facto custodian if s/he is the child’s step-parent or is the live-in partner of the child’s parent.3
Once the judge determines that someone is a de facto custodian, the issue then becomes if it’s in the child’s best interests for the de facto custodian to have custody in addition to one of the parents or instead of the parents.4 The judge can also consider:
- the circumstances under which the child was allowed to remain in the care of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent to seek work or to attend school; and
- whether the child is currently residing with the de facto custodian and, if not, the length of time since the person last functioned as the child’s de facto custodian.5
1 I.C. § 32-1704(1)
2 I.C. § 32-1703(1)(a), (1)(b)
3 I.C. § 32-1703(4)(b)
4 I.C. § 32-1704(2)(j), (6), (7)
5 I.C. § 32-1704(8)
What is a parenting plan?
A parenting plan is a written document that describes the custody and visitation arrangements in detail. It spells out when each parent will have time with the child. It also states what the parents’ responsibilities are and how parents will make certain important decisions about the child.
In Idaho, when a parent files for custody, s/he has to fill out a parenting plan form with the petition.1 The Bannock County Court Assistance Office has a YouTube video that explains how to fill out the parenting plan form. (WomensLaw can’t vouch for the information on an outside website and you may want to check it with a local lawyer.)
If you are a domestic violence survivor, the parenting plan needs to be safe for you and your child. The best way to get help making a safe parenting plan is to speak with a lawyer who knows about custody and domestic violence. Go to our Idaho Finding a Lawyer page for legal referrals. However, if you’re on your own without a lawyer, you may find it helpful to read 10 Things to Know About Parenting Plans in Cases Involving Domestic Violence.2
1 See the Idaho Court Assistance Office (CAO) Family Law form called “CAO FL-3 Parenting Plan,” available at https://courtselfhelp.idaho.gov/Forms
2 See 10 Things to Know About Parenting Plans in Cases Involving Domestic Violence by Melissa Mangiaracina, JD, National Council of Juvenile and Family Court Judges (2019)
What are some pros and cons of getting a custody order?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for more custody or visitation rights than they are comfortable with.
If the other parent is now uninvolved with the child, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long time, which can be emotionally and financially draining. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental health issues, your criminal record, substance abuse issues, and details of your relationships.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- the right to make decisions about your child; and
- the right to have your child live with you.
Without a custody order, both parents may share these legal rights, even if one parent takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.
We strongly recommend talking to a lawyer who can help you think through whether filing for custody would be best for you, depending on the facts of your situation. You can find legal help by going to Idaho Finding a Lawyer.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request. However, this may depend on your situation.
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Often, at the end of a case, the other parent ends up with more frequent and longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, go to Idaho Finding a Lawyer to seek out legal advice.