Idaho Custody

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

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:

1. is related to the child within the third degree of consanguinity, such as an uncle or great-grandparent; and
2. 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)