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EspañolWhat 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.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.
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
