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Legal Information: Idaho


January 15, 2021

Who can file for custody?

Either or both parents can file a custody petition or a “de facto custodian” can file for custody.1 A de facto custodian is someone who:

  1. is related to the child within the third degree of consanguinity, such as an uncle or great-grandparent; and
  2. has been the primary caregiver for, and primary financial supporter of, the child and has lived with the child without the child’s parent being present and with a “lack of demonstrated consistent participation” by the parent for a period of:
    • six months or more if the child is under three years of age; or
    • one year or more if the child is three years of age or older.2

A person cannot be considered a de facto custodian if s/he is the child’s step-parent or is the live-in partner of the child’s parent.3

Once the judge determines that someone is a de facto custodian, the issue then becomes if it’s in the child’s best interests for the de facto custodian to have custody in addition to one of the parents or instead of the parents.4 The judge can also consider:

  • the circumstances under which the child was allowed to remain in the care of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent to seek work or to attend school; and
  • whether the child is currently residing with the de facto custodian and, if not, the length of time since the person last functioned as the child’s de facto custodian.5

1 I.C.§ 32-1704(1)
2 I.C.§ 32-1703(1)(a), (1)(b)
3 I.C.§ 32-1703(4)(b)
4 I.C.§ 32-1704(2)(j), (6), (7)
5 I.C.§ 32-1704(8)