Legal Information: Idaho


September 2, 2022

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

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.1Note: 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

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