Legal Information: Idaho

Idaho Custody

Custody

This page includes information about custody that is specific to Idaho. There is also a page with general custody information that you may find helpful. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.

Basic info and definitions

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:

  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)

The custody process

What factors will a judge consider when deciding custody?

When deciding custody, the judge will consider all relevant factors to determine what is in the child’s best interests, such as:

  • the wishes of the parents;
  • the wishes of the child as to which parent s/he wants to live with;
  • the interaction and interrelationship of the child with his/her parents and siblings;
  • the child’s adjustment to his/her home, school, and community;
  • the character and circumstances of all parties;
  • the need to promote continuity and stability in the life of the child; and
  • whether domestic violence was committed by either parent, even if it was not in the presence of the child.1

If a parent has a disability, the parent has the right to provide evidence and information that shows how the use of adaptive equipment or supportive services will allow the parent to carry out the responsibilities of parenting the child. The law is clear, though, that the judge cannot discriminate based on the basis of a disability. If the judge believes the disability is relevant to the custody decision, the judge has to clearly state in writing what effect, if any, the disability has on the best interests of the child.2 The law specifically clarifies that one’s sexual preference or sexual orientation is not considered an impairment or disability.3

1 I.C. § 32-717(1)
2 I.C. §§ 32-717(2), (5); 32-1005(3)
3 I.C. § 32-1005(2)(b)

Can a parent who committed domestic violence get joint custody?

In general, the judge is supposed to assume that joint custody is in the best interests of the child. However, if there is a “preponderance of the evidence” that proves otherwise, the judge can deny joint custody. The law specifically says that if a parent has been found to be a “habitual” perpetrator of domestic violence, the judge should assume that joint custody is not in the child’s best interests and can grant sole custody to the non-abusive parent.1 It’s also possible that the judge can order supervised visitation or supervised exchanges of the child through a supervised access provider.2

1 I.C. § 32-717B(4), (5)
2 See I.C. § 32-717E

What happens if I make an allegation of child abuse against the other parent?

If you allege that the other parent committed child abuse or child sexual abuse, the judge is supposed to order the Department of Health and Welfare to conduct an investigation. That investigation must be conducted within thirty days. A final award of custody or visitation generally won’t be made until the judge receives the report from the investigation.1 However, since it can be hard to prove child abuse or child sexual abuse, and there can be negative repercussions if the judge doesn’t believe you, you may want to consult with a lawyer about the best way to present your allegations to the court.

1I.C. § 32-717C

Can grandparents get visitation?

The district court may grant reasonable visitation rights to grandparents or great-grandparents if it can be proven that visitation would be in the best interests of the child.1

1 I.C. § 32-719

After a custody order is issued

Can the non-custodial parent have access to the child's records?

The non-custodial parent can have access to records and information relating to the child, including medical, dental, health, and school or educational records. However, information concerning the child’s address can be deleted from the records at the custodial parent’s request. The custodial parent would need to make a written request to the “records custodian” who maintains the records in each location asking that this information be deleted and the law says that the records custodian must do it.1

1 I.C. § 32-717A

Can I ask the judge to change the custody order after it is issued?

If you want to change your order, you can file a petition for modification. However, you have to prove to the judge that there has been a substantial and material change in your circumstances and the change requested is in the child’s best interests.

However, if there has only been a brief period of time since the order was issued, the judge may not agree to modify your order unless it’s to correct a clerical error in the order. There isn’t a specific amount of time that you need to wait before you can file a modification petition, though. Whether the judge agrees to hear your case could depend on the individual judge, the type of modification requested, whether both parents are in agreement as to the modification or not, and other factors.1

Exceptions are made for military servicemembers, however, when the modification request is due to a parent’s military deployment. For example, a judge can temporarily modify an existing child custody order during the period of deployment and then conduct an expedited or emergency hearing once the deployment ends.2

Note: If the judge believes that a modification petition is filed purely to annoy or harass the other party, the judge will order the petitioner to pay the attorney’s fees and costs of the other party.3

1 See Instructions for Filing a Modification Petition on the Idaho Courts website
2 I.C. § 32-720
3 I.C. § 32-718

Where can I find additional information about custody in Idaho?

The Idaho Courts website offers the following:

  • A link to court forms for:
  • Informational brochures on custody, visitation, paternity, child support, and more.
  • Idaho also has Court Assistance Offices (CAO), which provide various services to the public to help ensure equal access to the courts. Their services include: review of CAO court forms and documents before they are filed; availability of public access computers for interactive forms; help with general form/document questions; assistance with calculating child support and completing a parenting plan; collection of instructional videos, brochures, and pamphlets on topics such as introduction to the court system, family law matters, domestic violence, etc.; legal research assistance on the Law Library website. To find your local CAO office, click here.

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