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EspañolWhat are the steps to file for custody?
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.
- 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.
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.
What factors will a judge consider when deciding custody?
The judge will consider all relevant factors to figure out what type of custody is in your child’s best interests. The judge will look at the following factors:
- what the parents want;
- which parent the child wants to live with;
- how the child gets along with the parents and any siblings;
- how accustomed the child is to his/her home, school, and community;
- each parent’s character and life circumstances;
- the need for the child’s life to be stable and continue without big changes; and
- whether either parent committed domestic violence, even if it was not in front of the child.1
If you have a disability, you can show proof of how you will use adaptive equipment or supportive services to carry out your parenting responsibilities. The judge cannot discriminate against you just because of a disability. If the judge believes that your disability is relevant to the custody decision, the judge must clearly state in writing how your disability affects what is best for the child.2 A parent’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?
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
What happens if I tell the judge the other parent abused the child?
If you say that the other parent abused or sexually abused the child, the judge must order the Department of Health and Welfare to investigate. The investigation must be done within thirty days. The judge will usually wait to get the report from the investigation before giving a final custody or visitation order.1 However, proving that a child was abused or sexually abused is hard. And there can be negative consequences if the judge doesn’t believe you. To be safe, ask an Idaho lawyer about the best way to bring your concerns to the judge.
1 I.C. § 32-717C
Is there anything I can do if my abusive partner keeps filing court cases against me?
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
