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EspañolWhat types of custody are there?
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)
What is the role of a parenting coordinator?
A parenting coordinator is someone who helps parents work out their disagreements. The goal is to lessen the amount of conflict between the parents, which ultimately benefits the children.
The judge can appoint a parenting coordinator if the judge believes that one is needed. The judge will usually order the parents to split the costs for the parenting coordinator’s time.1 The parenting coordinator will report to the judge how things are going at least once every six months.2
1 I.C. § 32-717D(1), (3), (4)
2 I.C. § 32-717D(1)
Who can file for custody?
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:
- is the child’s relative within three degrees of relation (consanguinity), such as an uncle or great-grandparent; and
- 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)
How will the judge decide if a de facto custodian should have custody?
If the judge determines that the person filing for custody is a de facto custodian, then the next step is for the judge to decide if it would be in the child’s best interests for him/her to have custody instead of the child’s parents or jointly with one of the parents.1
The judge can also consider why the child was in the care of the de facto custodian. For example, did the child stay with the de facto custodian while the parent was looking for work or going to school? The judge can also look at whether or not the child still lives with the de facto custodian. If the child does not, the judge can consider how long it has been since the person filing for custody last filled the role of de facto custodian.2
1 I.C. § 32-1704(2)(j), (6), (7)
2 I.C. § 32-1704(8)
What is a parenting plan?
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
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 fear that starting a court case will provoke the other parent. They may fear that the other parent will fight for more custody or visits than they are comfortable with.
Even if the other parent is uninvolved with the child now, s/he may become involved when a case is filed in court. Also, if the other parent fights for custody, the case may drag on for a long time. This can be emotionally and financially draining. When you are in court for custody, the judge will look into many aspects of your personal life. For example, the judge may look into your mental health, criminal record, substance abuse issues, and relationships. You may prefer to keep these things private.
On the other hand, getting a custody order from a court can set out what legal rights each of the parents have, which can be a benefit. A custody order can give you the legal rights to make decisions about your child and have your child live with you. Without an order, both parents may share these legal rights, even if one parent takes care of the child daily. However, if you file for custody, the other parent may also request these rights. If you and the other parent don’t agree, the judge will decide what custody arrangement is best for the child.
We strongly recommend that you get advice from a local lawyer. A lawyer can help you decide if filing for custody is best for you based on the facts of your situation. You can find legal help by going to our Idaho Finding a Lawyer page.
Should I start a court case to ask for supervised visitation?
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.
