Idaho Custody

Custody

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:

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.⁴The 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)
²I.C.§ 32-1703(1)(a), (1)(b)
³I.C.§ 32-1703(4)(b)
⁴I.C.§ 32-1704(2)(j), (6), (7)
⁵I.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
²See 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.

The custody process

What are the steps to file for custody?

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial.

However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives, and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

If you are a married parent filing for divorce, you can usually include the custody petition within the divorce process.
If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

The specific steps for filing for custody will depend on your exact case and the procedures in your county. The custody petition forms will be available at your local courthouse. Many forms are also available online. Some county courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot give you legal advice or represent you.

We recommend that you get assistance from an Idaho lawyer to make sure that you have all of the correct forms and that you have filled them out properly. You can use our Idaho Courthouse Locations, Idaho Download Court Forms, and Idaho Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

When you file your petition for custody, the clerk will tell you when to return to court for further action. After you file, the papers will need to be served to the other parent.

For more information about the custody steps in Idaho, see the Idaho Child Custody Court Process and Detailed Custody Court Process for Custody or Divorce charts on Idaho Legal Aid’s website. (WomensLaw can’t vouch for the information on an outside website and you may want to check it with a local lawyer.)

2. Prepare for the custody process

Custody cases are complicated, so you may want to consider getting a lawyer. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. To learn about the factors in Idaho, go to What factors will a judge consider when deciding custody? It’s important to know that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

Keep in mind that custody court cases often take a long time. Going through this process can be emotionally and financially draining. Do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you through the process and help you plan for your safety.

3. Prepare for trial

There will be one or more hearings, including a trial, if you and the other parent cannot reach an agreement by yourselves or through mediation. During trial, you or your attorney will be able to present evidence and cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you may want to think about safety issues and plan for your safety while in court. Ask the judge to include protections in your custody and visitation orders. For example, you can ask for some of the following terms:

communication between the parents must be in writing;
communication can only be related to the child; and
a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

To avoid future conflicts, you should also try to be as specific as possible about how you and the other parent will make important decisions; who will have the child on holidays, birthdays, etc.; and when and where you and the other parent will pick up and drop off the child.

4. Options if you lose the custody case

If you are unhappy with the judge’s order, there may be a couple of options that could be filed immediately - for example:

A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

There could also be an option that you may take in the future, but not immediately after the judge gives the order. A motion or petition to change (modify) the order could be filed later on if a “substantial change of circumstances” happens. A few examples of substantial changes in circumstances could be if the other parent gets sent to jail or gets charged with child abuse or neglect; if you move or the other parent moves to another state; or if your child’s needs significantly change.

To find out more about how the process works in your area, please contact a lawyer. Please visit our Idaho Finding a Lawyer page to find legal help in your area. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation, related legal concepts that a judge will consider, child support, and moving out of state with your child.

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.²The 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.¹However, 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.

¹ I.C. § 32-717C

Is there anything I can do if my abusive partner continually files court cases against me?

Idaho law says that if a party who is not represented by a lawyer (“pro se”) continually files civil court cases for the purpose of harassing or maliciously injuring you, known as “vexatious litigation,” an administrative judge can take steps to stop this behavior. The judge can enter a “pre-filing order” that prohibits the person from filing pro se any new litigation without first getting permission from a judge. To get the judge to issue this pre-filing order, you would make a motion to the district court judge or magistrate judge who is ruling over your case.¹ Note: The law only talks about a pro se petitioner. The law does not seem to address a situation where the abuser continually files cases against you through a lawyer.

The judge can issue a pre-filing order if any of the following are true:

the other party filed pro se, and lost, at least three civil court cases in the past seven years, not including small claims court cases;
after losing a case, the other party repeatedly re-litigates or attempts to re-litigate, pro se, to challenge the validity of the judge’s determination or to re-file a case about the same issues;
during any litigation, the other party repeatedly files pro se baseless motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other actions that are frivolous or solely intended to cause unnecessary delay; or
the other party has previously been declared to be a “vexatious litigant” by any state or federal court.²

Additionally, Idaho law specifically says that in a divorce case, if a party files a modification petition that is without a legal basis (“vexatious”) and is harassing, the judge can order that party to pay the attorney fees and costs of the other party.³

¹ ID R ADMIN Rule 59(a)(1), (b), (c)
² ID R ADMIN Rule 59(d)
³ I.C. § 32-718

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

¹I.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

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

WomensLaw.org has no relationship with these websites and does not endorse their services. We provide these links for your information only.

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Legal Information: Idaho