Joint custody is when custody is given to both parents. The child has frequent and continuing contact with each parent. The judge can award joint physical custody, joint legal custody, or both. The judge will usually assume that joint custody is best for the child unless there is enough proof (a “preponderance of the evidence”) that it’s not. If the judge denies joint custody, the judge must explain why.¹ To learn more about when the judge will not order joint custody, go to Can a parent who committed domestic violence get joint custody?

There are two parts of joint custody.

• Joint physical custody is when both parents care for and supervise the child. The child lives with each of them for significant time periods. The child is supposed to have frequent and continuing contact with both parents. However, this does not mean the child must spend equal time with each parent.
• Joint legal custody means that the parents share the legal rights, responsibilities, and power to make important decisions about the child’s health, education, and general welfare.²

Sole physical custody is when the child mostly lives with one parent. The other parent can still have the right to visit with the child.

Sole legal custody is when only one parent has the legal right to make important decisions about the child’s health, education, and welfare. 

¹ I.C. § 32-717B(1), (4), (5)
² I.C. § 32-717B(2), (3)

You can file for custody if you are the child’s parent or a “de facto custodian.”¹ 

A de facto custodian is someone who:

1. is the child’s relative within three degrees of relation (consanguinity), such as an uncle or great-grandparent; and
2. was the child’s primary caregiver, financially supported the child, and lived with the child while the child’s parent was absent and inconsistently involved in the child’s life for a specific period of time, as follows:
   
   • If the child is under three years old, the time period is six months or longer.
   • If the child is three years old or older, the time period is one year or longer.²

Note: The child’s step-parent or the parent’s live-in partner cannot be considered a de facto custodian.³

If you believe you qualify as a de facto custodian, see How will the judge decide if a de facto custodian should have custody?

¹ I.C. ^​§ 32-1704(1)
² I.C. ^​§ 32-1703(1)(a), (1)(b)
³ I.C. ^​§ 32-1703(4)(b)

A parenting plan is a written document that describes in detail what the custody and visitation arrangements are. It sets out when each parent will have time with the child. It also explains the parents’ responsibilities and how they will make important decisions.

In Idaho, parents must fill out a parenting plan form when they file for custody.¹ The Bannock County Court Assistance Office has a YouTube video that explains how to complete the form.

If you are a victim or survivor of domestic violence, your parenting plan needs to be safe for you and your child. The best way to get help making a safe plan is to get advice from a lawyer who knows about custody and domestic violence. Go to our Idaho Finding a Lawyer page for legal referrals. If you have to be in court on your own without a lawyer, you may find it helpful to read this guide published by the National Council of Juvenile and Family Court Judges called 10 Things to Know About Parenting Plans in Cases Involving Domestic Violence.

¹ See the Idaho Court Assistance Office (CAO) Family Law form called “CAO FL-3 Parenting Plan,” available at https://courtselfhelp.idaho.gov/Forms

If you’re worried about leaving your child alone with the abuser, you might think about asking a judge to order supervised visits. Supervised visits could be as lenient as having someone else there during the visits to “keep an eye” on things, or it could be as strict as having a professional appointed to observe and report back on the interaction between your child and the other parent. If you are already in court because the abuser filed for visitation or custody, it might be worth asking for supervised visits if you have a good reason. It depends on your situation.

However, if there is no court case going on now, it’s a good idea to talk to a lawyer before you start a case to ask for supervised visits. A custody lawyer in your area can explain what you need to prove to get supervised visits and how long they might last based on what is happening in your case.

Usually, supervised visits are only ordered for a short time but this may be different depending on where you live and who your judge is. The judge might order a professional to watch the visits, or a relative or other person known to either parent might volunteer to be the supervisor. If the supervisor doesn’t report any big problems back to the judge, the visits might become unsupervised. At the end of a case, the other parent might get more frequent and longer visits than s/he had before you went into court or even some form of custody.

If your child is in immediate danger from the abuser, you may need to start a case to ask for custody and supervised visits to protect your child. To find out what is best for your situation, you can look for legal advice using our Idaho Finding a Lawyer page.

Before you file in court for custody, you may think about making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the benefit of the child. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes parents need to fight for sole custody because they can’t agree with the other parent. You may need to file for custody if the other parent is keeping the child from you or you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

To read more about some issues you may want to think about if you are starting a case against an abuser, go to the Safety Issues section of our Court System Basics page. You can also watch our Custody, Visitation, and Child Support videos where we explain legal concepts and the court process. The videos talk about the different types of custody and visitation, how judges decide, child support, and moving out of state with your child. 

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

1. File for custody

The legal paperwork that starts a custody case is called a petition. You may file your custody petition 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. Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary order when you file your petition.

The exact petition you file may depend on whether or not you are married.

• If you are married and getting divorced from your child’s other parent, you can usually file for custody in the divorce case.
• If you are married but not filing for divorce, or if you are not married to your child’s other parent, you can file a separate custody petition. However, if you are not married and the father hasn’t been legally recognized by signing an affidavit of paternity at birth, or through a child support or paternity proceeding, you typically need to establish paternity first. This can be done by filing a petition to establish paternity in court.

The custody petition forms will be available at your local courthouse. Many forms are also available online. Some 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 advise or represent you. The specific steps for filing for custody will depend on your exact case and the procedures in your county. We recommend that you get help from an Idaho lawyer to make sure that you have all of the forms and fill them out correctly. 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.

For more on the custody steps in Idaho, see Idaho Legal Aid’s Idaho Child Custody Court Process and Detailed Custody Court Process for Custody or Divorce charts.

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.

2. Prepare for the custody process

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

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge in your state looks at to figure out what’s best for your child. To see the factors in Idaho, go to What factors will a judge consider when deciding custody? The judge may issue temporary custody and visitation orders while the case is going on.

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 and help you plan for your safety while in court.

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, with the help of your attorneys, or through mediation.  During the trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. After the trial, the judge will decide what s/he thinks is best for your child and issue a final custody and visitation order.

If you are a victim or survivor of domestic violence, you can ask the judge to include protections in your temporary and final custody and visitation orders. For example, you can ask the judge to order the following:

• All communication between the parents must be in writing.
• The parents can only communicate with each other about the child.
• Another person, like a friend or relative who gets along with both parents, should be there when the parents exchange the child or should do the drop-off and pick-up.

4. Options if you lose the custody case

If you don’t agree with the judge’s order, there are a couple of legal actions that you might be able to take right away, such as filing a motion for reconsideration or an appeal.

1. A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
2. 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.

You might also be able to ask the judge to change your order in the future, by filing a motion or petition to change (modify) the order. However, usually this can only be filed if there is a “substantial change of circumstances.” Here are a few examples of events that might be considered substantial changes in circumstances:

• The other parent gets sent to jail or charged with child abuse or neglect.
• You move or the other parent moves to another state.
• Your child’s needs change in a big way.

For help, go to Idaho Finding a Lawyer for legal referrals.​

The judge will usually assume that joint custody is best for the child. However, if you present enough proof (a “preponderance of the evidence”) showing that it’s not best for your child, the judge can deny joint custody. There is a specific exception for domestic violence. If a judge determined that one parent repeatedly (“habitually”) committed domestic violence, the judge must assume that joint custody is not best for the child. Instead, the judge can grant sole custody to the non-abusive parent.¹ The judge can also order that the visits or the exchanges of the child be supervised by an agency or professional.²

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

If the abuser keeps filing civil court cases against you without a lawyer,  known as “pro se,” and it’s meant to harass or harm (“maliciously injure”) you, this is known as “vexatious litigation.” An administrative judge can take steps to stop it by making a “pre-filing order.” This kind of order prevents the abuser from filing new court papers as a pro se petitioner without first getting the judge’s permission. To ask for a pre-filing order, you would make a motion to the district court judge or magistrate judge handling your case.¹

The judge can make a pre-filing order against the abuser if any one of the following is true:

• The abuser filed and lost at least three civil court cases in the past seven years. (Small claims court cases do not count.)
• After losing a case, the abuser kept filing or trying to dispute the same issue, challenge the judge’s decision, or bring another case about the same issue.
• During any court case, the abuser filed multiple baseless motions, pleadings, or other legal papers, conducted unnecessary discovery, or acted in another way that had no purpose or caused delay.
• A judge in another court case already determined that the abuser was a “vexatious litigant.”²

Note: This law is only about a pro se petitioner. It does not seem to address a situation where the abuser files many cases against you through a lawyer.

In addition, there is a special law about divorce and custody cases. If the abuser files to change (modify) your divorce or custody order without a legal basis, just to harass you, this is known as a “vexatious petition.” If you have to go back to court to fight it, you can ask the judge to order the abuser to pay your legal fees and costs.³

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

A parent who does not have custody, known as the “non-custodial parent,” can still have access to the child’s records and information. This includes medical, dental, health, and school or educational records. However, the parent with custody, known as the “custodial parent,” can ask for the child’s address to be deleted from the records. If the custodial parent writes to the person who keeps the records at each location, known as the “records custodian, and asks for the address to be deleted, then the records custodian must do it.¹

¹ I.C. § 32-717A

You can find more information on the Idaho Courts Self-Help website. They have the forms for different types of cases:

• custody, paternity, visitation, and child support;
• changing a custody, visitation, or child support order;
• and more.

They also have brochures about custody, visitation, paternity, child support, and related topics.

You can also get information from the Court Assistance Offices, called “CAOs” for short. They can help you in the following ways:

• review court forms and documents before you file them;
• answer general questions about forms and documents;
• help you calculate child support or complete a parenting plan;
• let you use a computer to fill out interactive forms or do legal research on the law library website; and
• show you instructional videos, brochures, and pamphlets about the court system, family law, and domestic violence.

To find your local CAO location, click here.

WomensLaw.org does not have a relationship with these websites or endorse their services. We provide these links for your information only.