2000 Legislation
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SENATE BILL NO. 1298, As Amended – Child custody jurisdiction/enforcmt

SENATE BILL NO. 1298, As Amended

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S1298aa..............................................by JUDICIARY AND RULES
CHILD CUSTODY - Repeals and adds to existing law to establish the Uniform
Child Custody Jurisdiction and Enforcement Act; to provide a short title,
to provide definitions; to provide for proceedings governed by other law;
to provide for application to Indian tribes; to provide international
application; to provide for effect of child custody determination; to
provide priority; to provide for notice to persons outside the state; to
provide for appearance and limited immunity; to provide for communication
between courts; to provide for taking testimony in another state; to
provide for cooperation between courts and preservation of records; to
provide jurisdiction; to provide for notice and opportunity to be heard and
joinder; to provide for simultaneous proceedings; to provide for
inconvenient forums; to provide for information to be submitted to the
court; to provide for appearance of parties and child; to provide for
enforcement under the Hague Convention; to provide a duty to enforce; to
provide for temporary visitation; to provide for registration of child
custody determinations; to provide for enforcement of registered
determinations; to provide for expedited enforcement of child custody
determinations; to provide for service of petition and order; to provide
for hearing and order; to provide for a warrant to take physical custody of
a child; to provide for costs, fees and expenses; to provide for
recognition and enforcement; to provide for appeals; to provide the role of
the prosecutor and law enforcement; to provide application and
construction; to provide severability; and to provide a transitional
provision.
                                                                        
01/24    Senate intro - 1st rdg - to printing
01/25    Rpt prt - to Jud
02/03    Rpt out - to 14th Ord
02/11    Rpt out amen - to engros
02/14    Rpt engros - 1st rdg - to 2nd rdg as amen
02/15    2nd rdg - to 3rd rdg as amen
02/18    3rd rdg as amen - PASSED - 34-0-1
      AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
      Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes,
      Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Noh,
      Parry, Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner,
      Stennett, Thorne, Wheeler, Whitworth, Williams
      NAYS--None
      Absent and excused--Branch
    Floor Sponsor - Dunklin
    Title apvd - to House
02/21    House intro - 1st rdg as amen - to Jud
03/28    Rpt out - rec d/p - to 2nd rdg as amen
03/29    2nd rdg - to 3rd rdg as amen
04/03    3rd rdg as amen - PASSED - 66-0-4
      AYES -- Alltus, Barraclough(Barraclough), Barrett, Bell, Bieter,
      Black, Boe, Bruneel, Callister, Campbell, Chase, Cheirrett, Deal,
      Denney, Ellsworth, Field(13), Field(20), Gagner, Geddes, Gould,
      Hadley, Hammond, Hansen(23), Hansen(29), Henbest, Hornbeck, Jaquet,
      Jones, Judd, Kellogg, Kempton, Kendell, Kunz, Lake, Linford,
      Loertscher(Loertscher), Mader, Marley, McKague, Meyer, Montgomery,
      Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy, Reynolds,
      Ridinger, Ringo, Robison, Sali, Schaefer, Sellman, Shepherd, Smith,
      Smylie, Stevenson, Stoicheff, Stone, Taylor, Tilman, Trail, Wheeler,
      Wood, Zimmermann
      NAYS -- None
      Absent and excused -- Clark, Crow, Cuddy, Mr Speaker
    Floor Sponsor - Field(13)
    Title apvd - to Senate
04/04    To enrol - rpt enrol - Pres signed
04/05    Sp signed
04/06    To Governor
04/12    Governor signed
         Session Law Chapter 227
         Effective: 07/01/00

Bill Text


 S1298
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                              SENATE BILL NO. 1298, As Amended
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO CHILD CUSTODY JURISDICTION; REPEALING CHAPTER 11, TITLE 32,  IDAHO
  3        CODE;  AMENDING TITLE 32, IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 11,
  4        TITLE 32, IDAHO CODE, TO PROVIDE THE UNIFORM  CHILD  CUSTODY  JURISDICTION
  5        AND  ENFORCEMENT ACT, TO PROVIDE A SHORT TITLE, TO PROVIDE DEFINITIONS, TO
  6        PROVIDE FOR PROCEEDINGS GOVERNED BY OTHER LAW, TO PROVIDE FOR  APPLICATION
  7        TO  INDIAN  TRIBES,  TO  PROVIDE INTERNATIONAL APPLICATION, TO PROVIDE FOR
  8        EFFECT OF CHILD CUSTODY DETERMINATION, TO PROVIDE PRIORITY, TO PROVIDE FOR
  9        NOTICE TO PERSONS OUTSIDE THE STATE, TO PROVIDE FOR APPEARANCE AND LIMITED
 10        IMMUNITY, TO PROVIDE FOR COMMUNICATION BETWEEN THE COURTS, TO PROVIDE  FOR
 11        TAKING  TESTIMONY  IN  ANOTHER  STATE,  TO PROVIDE FOR COOPERATION BETWEEN
 12        COURTS AND PRESERVATION OF  RECORDS,  TO  PROVIDE  INITIAL  CHILD  CUSTODY
 13        JURISDICTION,  TO  PROVIDE  EXCLUSIVE  CONTINUING JURISDICTION, TO PROVIDE
 14        JURISDICTION TO  MODIFY  DETERMINATION,  TO  PROVIDE  TEMPORARY  EMERGENCY
 15        JURISDICTION,  TO PROVIDE FOR NOTICE, OPPORTUNITY TO BE HEARD AND JOINDER,
 16        TO PROVIDE FOR  SIMULTANEOUS  PROCEEDINGS,  TO  PROVIDE  FOR  INCONVENIENT
 17        FORUMS, TO PROVIDE FOR JURISDICTION DECLINED BY REASON OF CONDUCT, TO PRO-
 18        VIDE  FOR INFORMATION TO BE SUBMITTED TO THE COURT, TO PROVIDE FOR APPEAR-
 19        ANCE OF PARTIES AND CHILD, TO PROVIDE FOR ENFORCEMENT UNDER THE HAGUE CON-
 20        VENTION, TO PROVIDE A DUTY TO ENFORCE, TO PROVIDE  FOR  TEMPORARY  VISITA-
 21        TION, TO PROVIDE FOR REGISTRATION OF CHILD CUSTODY DETERMINATIONS, TO PRO-
 22        VIDE FOR ENFORCEMENT OF REGISTERED DETERMINATIONS, TO PROVIDE FOR SIMULTA-
 23        NEOUS  PROCEEDINGS,  TO PROVIDE FOR EXPEDITED ENFORCEMENT OF CHILD CUSTODY
 24        DETERMINATIONS, TO PROVIDE FOR SERVICE OF PETITION AND ORDER,  TO  PROVIDE
 25        FOR  HEARING  AND ORDER, TO PROVIDE FOR A WARRANT TO TAKE PHYSICAL CUSTODY
 26        OF A CHILD, TO PROVIDE FOR COSTS, FEES AND EXPENSES, TO PROVIDE FOR RECOG-
 27        NITION AND ENFORCEMENT, TO PROVIDE FOR APPEALS, TO PROVIDE THE ROLE OF THE
 28        PROSECUTOR, TO PROVIDE THE ROLE OF LAW ENFORCEMENT, TO PROVIDE  FOR  COSTS
 29        AND  EXPENSES,  TO PROVIDE APPLICATION AND CONSTRUCTION, TO PROVIDE SEVER-
 30        ABILITY AND TO PROVIDE A TRANSITIONAL PROVISION; AMENDING SECTION 39-6306,
 31        IDAHO CODE, TO PROVIDE A CORRECT REFERENCE;  AND  PROVIDING  AN  EFFECTIVE
 32        DATE.
                                                                        
 33    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 34        SECTION  1.  That  Chapter  11,  Title 32, Idaho Code, be, and the same is
 35    hereby repealed.
                                                                        
 36        SECTION 2.  That Title 32, Idaho Code, be amended by the addition of a NEW
 37    CHAPTER, to be known and designated as Chapter 11, Title 32, Idaho  Code,  and
 38    to read as follows:
                                                                        
                                            2
                                                                        
  1                                      CHAPTER 11
  2                UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
                                                                        
                                                                        
  3                                        PART 1
  4                                  GENERAL PROVISIONS
                                                                        
  5        32-11-101.  SHORT  TITLE.  This chapter may be cited as the "Uniform Child
  6    Custody Jurisdiction and Enforcement Act."
                                                                        
  7        32-11-102. DEFINITIONS. In this chapter:
  8        (a)  "Abandoned" means left without provision for reasonable and necessary
  9    care or supervision.
 10        (b)  "Child" means an individual who has not attained eighteen (18)  years
 11    of age.
 12        (c)  "Child  custody  determination"  means  a  judgment, decree, or other
 13    order of a court providing for the legal custody, physical custody or  visita-
 14    tion  with  respect to a child. The term includes a permanent, temporary, ini-
 15    tial and modification order. The term does not include an  order  relating  to
 16    child support or other monetary obligation of an individual.
 17        (d)  "Child custody proceeding" means a proceeding in which legal custody,
 18    physical  custody  or visitation with respect to a child is an issue. The term
 19    includes a proceeding for divorce,  separation,  neglect,  abuse,  dependency,
 20    guardianship,  paternity,  termination of parental rights, and protection from
 21    domestic violence, in which the issue may appear. The term does not include  a
 22    proceeding   involving   juvenile  delinquency,  contractual  emancipation  or
 23    enforcement under part 3 of this chapter.
 24        (e)  "Commencement" means the filing of the first pleading in  a  proceed-
 25    ing.
 26        (f)  "Court" means an entity authorized under the law of a state to estab-
 27    lish, enforce or modify a child custody determination.
 28        (g)  "Home  state" means the state in which a child lived with a parent or
 29    a person acting as a parent for at least six (6)  consecutive  months  immedi-
 30    ately  before the commencement of a child custody proceeding. In the case of a
 31    child less than six (6) months of age, the term means the state in  which  the
 32    child  lived  from birth with any of the persons mentioned. A period of tempo-
 33    rary absence of any of the mentioned persons is part of the period.
 34        (h)  "Initial determination" means the first child  custody  determination
 35    concerning a particular child.
 36        (i)  "Issuing court" means the court that makes a child custody determina-
 37    tion for which enforcement is sought under this chapter.
 38        (j)  "Issuing  state"  means the state in which a child custody determina-
 39    tion is made.
 40        (k)  "Modification" means a  child  custody  determination  that  changes,
 41    replaces, supersedes, or is otherwise made after a previous determination con-
 42    cerning  the  same child, whether or not it is made by the court that made the
 43    previous determination.
 44        (l)  "Person" means an individual; corporation;  business  trust;  estate;
 45    trust;  partnership;  limited  liability  company; association; joint venture;
 46    government; governmental subdivision, agency or instrumentality; public corpo-
 47    ration; or any other legal or commercial entity.
 48        (m)  "Person acting as a parent" means a person, other than a parent, who:
 49        (1)  Has physical custody of the child or has had physical custody  for  a
 50        period  of  six  (6)  consecutive months, including any temporary absence,
 51        within one (1) year immediately before the commencement of a child custody
                                                                        
                                            3
                                                                        
  1        proceeding; and
  2        (2)  Has been awarded legal custody by a court or claims a right to  legal
  3        custody under the law of this state.
  4        (n)  "Petitioner"  means  a  person  who seeks enforcement of an order for
  5    return of a child under the Hague convention on the civil aspects of  interna-
  6    tional child abduction or enforcement of a child custody determination.
  7        (o)  "Physical  custody"  means  the  physical  care  and supervision of a
  8    child.
  9        (p)  "Respondent" means a person against whom a proceeding has  been  com-
 10    menced  for enforcement of an order for return of a child under the Hague con-
 11    vention on the civil aspects of international child abduction  or  enforcement
 12    of a child custody determination.
 13        (q)  "State" means a state of the United States, the District of Columbia,
 14    Puerto  Rico,  the  United  States Virgin Islands, or any territory or insular
 15    possession subject to the jurisdiction of the United States.
 16        (r)  "Tribe" means an Indian tribe or band,  or  Alaskan  native  village,
 17    which is recognized by federal law or formally acknowledged by a state.
 18        (s)  "Warrant"  means  an order issued by a court authorizing law enforce-
 19    ment officers to take physical custody of a child.
                                                                        
 20        32-11-103. PROCEEDINGS GOVERNED BY OTHER LAW. This chapter does not govern
 21    an adoption proceeding or a proceeding  pertaining  to  the  authorization  of
 22    emergency medical care for a child.
                                                                        
 23        32-11-104.  APPLICATION  TO INDIAN TRIBES. A child custody proceeding that
 24    pertains to an Indian child as defined in the Indian  child  welfare  act,  25
 25    U.S.C.  1901  et seq., is not subject to this chapter to the extent that it is
 26    governed by the Indian child welfare act.
                                                                        
 27        32-11-105. INTERNATIONAL APPLICATION OF CHAPTER. (a) A court of this state
 28    shall treat a foreign country as if it were a state of the United  States  for
 29    the purpose of applying parts 1 and 2 of this chapter.
 30        (b)  Except  as  otherwise  provided  in subsection (c) of this section, a
 31    child custody determination made in a foreign country  under  factual  circum-
 32    stances  in  substantial  conformity with the jurisdictional standards of this
 33    chapter must be recognized and enforced under part 3 of this chapter.
 34        (c)  A court of this state need not apply this chapter if the  child  cus-
 35    tody law of a foreign country violates fundamental principles of human rights.
                                                                        
 36        32-11-106. EFFECT OF CHILD CUSTODY DETERMINATION. A child custody determi-
 37    nation  made by a court of this state that had jurisdiction under this chapter
 38    binds all persons who have been served in accordance with  the  laws  of  this
 39    state  or  notified  in  accordance with section 32-11-108, Idaho Code, or who
 40    have submitted to the jurisdiction of the court, and who have  been  given  an
 41    opportunity  to be heard. As to those persons, the determination is conclusive
 42    as to all decided issues of law and fact except to the extent  the  determina-
 43    tion is modified.
                                                                        
 44        32-11-107.  PRIORITY.  If a question of existence or exercise of jurisdic-
 45    tion under this chapter is raised in a child custody proceeding, the question,
 46    upon request of a party, must be given priority on the  calendar  and  handled
 47    expeditiously.
                                                                        
 48        32-11-108.  NOTICE  TO  PERSONS OUTSIDE STATE. (a) Notice required for the
 49    exercise of jurisdiction when a person is outside this state may be given in a
                                                                        
                                            4
                                                                        
  1    manner prescribed by the law of this state for service of process  or  by  the
  2    law  of the state in which the service is made. Notice must be given in a man-
  3    ner reasonably calculated to give actual notice but may be by  publication  if
  4    other means are not effective.
  5        (b)    Proof of service may be made in the manner prescribed by the law of
  6    this state or by the law of the state in which the service is made.
  7        (c)  Notice is not required for the exercise of jurisdiction with  respect
  8    to a person who submits to the jurisdiction of the court.
                                                                        
  9        32-11-109. APPEARANCE AND LIMITED IMMUNITY. (a) A party to a child custody
 10    proceeding, including a modification proceeding, or a petitioner or respondent
 11    in  a  proceeding to enforce or register a child custody determination, is not
 12    subject to personal jurisdiction in this state for another proceeding or  pur-
 13    pose  solely  by  reason  of having participated, or of having been physically
 14    present for the purpose of participating, in the proceeding.
 15        (b)  A person who is subject to personal jurisdiction in this state  on  a
 16    basis  other  than  physical presence is not immune from service of process in
 17    this state. A party present in this state who is subject to  the  jurisdiction
 18    of  another  state  is  not immune from service of process allowable under the
 19    laws of that state.
 20        (c)  The immunity granted by subsection  (a)  of  this  section  does  not
 21    extend  to  civil litigation based on acts unrelated to the participation in a
 22    proceeding under this chapter committed by an individual while present in this
 23    state.
                                                                        
 24        32-11-110. COMMUNICATION BETWEEN COURTS. (a) A court  of  this  state  may
 25    communicate  with  a  court  in  another state concerning a proceeding arising
 26    under this chapter.
 27        (b)  The court may allow the parties to participate in the  communication.
 28    If  the parties are not able to participate in the communication, they must be
 29    given the opportunity to present facts and legal arguments before  a  decision
 30    on jurisdiction is made.
 31        (c)  Communication  between courts on schedules, calendars, court records,
 32    and similar matters may occur without informing the parties. A record need not
 33    be made of the communication.
 34        (d)  Except as otherwise provided in subsection (c)  of  this  section,  a
 35    record must be made of a communication under this section. The parties must be
 36    informed promptly of the communication and granted access to the record.
 37        (e)  For  the purposes of this section, "record" means information that is
 38    inscribed on a tangible medium or that is stored in  an  electronic  or  other
 39    medium and is retrievable in perceivable form.
                                                                        
 40        32-11-111.  TAKING  TESTIMONY  IN  ANOTHER STATE. (a) In addition to other
 41    procedures available to a party, a party to a  child  custody  proceeding  may
 42    offer  testimony of witnesses who are located in another state, including tes-
 43    timony of the parties and the child, by deposition or other means allowable in
 44    this state for testimony taken in another state. The court on its  own  motion
 45    may  order  that  the  testimony of a person be taken in another state and may
 46    prescribe the manner in which and the terms upon which the testimony is taken.
 47        (b)  A court of this state may permit an individual  residing  in  another
 48    state  to  be  deposed or to testify by telephone, audiovisual means, or other
 49    electronic means before a designated court or  at  another  location  in  that
 50    state.  A  court  of this state shall cooperate with courts of other states in
 51    designating an appropriate location for the deposition or testimony.
 52        (c)  Documentary evidence transmitted from another state  to  a  court  of
                                                                        
                                            5
                                                                        
  1    this  state by technological means that do not produce an original writing may
  2    not be excluded from evidence on an objection based on the means of  transmis-
  3    sion.
                                                                        
  4        32-11-112.  COOPERATION  BETWEEN  COURTS -- PRESERVATION OF RECORDS. (a) A
  5    court of this state may request the appropriate court of another state to:
  6        (1)  Hold an evidentiary hearing;
  7        (2)  Order a person to produce or give evidence pursuant to procedures  of
  8        that state;
  9        (3)  Order  that  an  evaluation  be made with respect to the custody of a
 10        child involved in a pending proceeding;
 11        (4)  Forward to the court of this state a certified copy of the transcript
 12        of the record of the hearing, the evidence otherwise  presented,  and  any
 13        evaluation prepared in compliance with the request; and
 14        (5)  Order  a  party  to  a  child custody proceeding or any person having
 15        physical custody of the child to appear in the proceeding with or  without
 16        the child.
 17        (b)  Upon  request  of a court of another state, a court of this state may
 18    hold a hearing or enter an order described in subsection (a) of this section.
 19        (c)  Travel and other necessary and  reasonable  expenses  incurred  under
 20    subsections  (a)  and  (b) of this section may be assessed against the parties
 21    according to the law of this state.
 22        (d)  A court of this state shall preserve the pleadings, orders,  decrees,
 23    records  of hearings, evaluations, and other pertinent records with respect to
 24    a child custody proceeding until the child attains eighteen (18) years of age.
 25    Upon appropriate request by a court or law  enforcement  official  of  another
 26    state, the court shall forward a certified copy of those records.
                                                                        
 27                                        PART 2
 28                                     JURISDICTION
                                                                        
 29        32-11-201.  INITIAL  CHILD  CUSTODY JURISDICTION.  (a) Except as otherwise
 30    provided in section 32-11-204, Idaho Code, a court of this state has jurisdic-
 31    tion to make an initial child custody determination only if:
 32        (1)  This state is the home state of the child on the  date  of  the  com-
 33        mencement of the proceeding, or was the home state of the child within six
 34        (6)  months  before  the  commencement  of the proceeding and the child is
 35        absent from this state but a parent or person acting as a parent continues
 36        to live in this state;
 37        (2)  A court of another state does not have jurisdiction  under  paragraph
 38        (1)  of  this  subsection,  or  a court of the home state of the child has
 39        declined to exercise jurisdiction on the ground that  this  state  is  the
 40        more  appropriate  forum under section 32-11-207 or 32-11-208, Idaho Code,
 41        and:
 42             (A)  The child and the child's parents, or the child and at least one
 43             (1) parent or a person acting as a parent, have a significant connec-
 44             tion with this state other than mere physical presence; and
 45             (B)  Substantial evidence is available in this state  concerning  the
 46             child's care, protection, training and personal relationships;
 47        (3)  All  courts  having  jurisdiction  under paragraph (1) or (2) of this
 48        subsection have declined to exercise jurisdiction on  the  ground  that  a
 49        court of this state is the more appropriate forum to determine the custody
 50        of the child under section 32-11-207 or 32-11-208, Idaho Code; or
 51        (4)  No  court of any other state would have jurisdiction under the crite-
 52        ria specified in paragraph (1), (2) or (3) of this subsection.
                                                                        
                                            6
                                                                        
  1        (b)  Subsection (a) of this section is the exclusive jurisdictional  basis
  2    for making a child custody determination by a court of this state.
  3        (c)  Physical  presence  of,  or  personal jurisdiction over, a party or a
  4    child is not necessary or sufficient to make a child custody determination.
                                                                        
  5        32-11-202. EXCLUSIVE, CONTINUING JURISDICTION.  (a)  Except  as  otherwise
  6    provided  in  section  32-11-204,  Idaho Code, a court of this state which has
  7    made a child  custody  determination  consistent  with  section  32-11-201  or
  8    32-11-203,  Idaho Code, has exclusive, continuing jurisdiction over the deter-
  9    mination until:
 10        (1)  A court of this state determines that  neither  the  child,  nor  the
 11        child  and  one  (1) parent, nor the child and a person acting as a parent
 12        have a significant connection with this state and  that  substantial  evi-
 13        dence  is  no  longer available in this state concerning the child's care,
 14        protection, training and personal relationships; or
 15        (2)  A court of this state or a court of another state determines that the
 16        child, the child's parents, and any person acting as a parent do not pres-
 17        ently reside in this state.
 18        (b)  A court of this state which has made a  child  custody  determination
 19    and  does  not  have exclusive, continuing jurisdiction under this section may
 20    modify that determination only if it  has  jurisdiction  to  make  an  initial
 21    determination under section 32-11-201, Idaho Code.
                                                                        
 22        32-11-203.  JURISDICTION TO MODIFY DETERMINATION. Except as otherwise pro-
 23    vided in section 32-11-204, Idaho Code, a court of this state may not modify a
 24    child custody determination made by a court of another state unless a court of
 25    this state has jurisdiction to make an  initial  determination  under  section
 26    32-11-201(a)(1) or (2), Idaho Code, and:
 27        (a)  The  court  of the other state determines it no longer has exclusive,
 28        continuing jurisdiction under section 32-11-202, Idaho  Code,  or  that  a
 29        court  of  this  state  would  be  a  more  convenient forum under section
 30        32-11-207, Idaho Code; or
 31        (b)  A court of this state or a court of the other state  determines  that
 32        the  child,  the child's parents, and any person acting as a parent do not
 33        presently reside in the other state.
                                                                        
 34        32-11-204. TEMPORARY EMERGENCY JURISDICTION. (a) A court of this state has
 35    temporary emergency jurisdiction if the child is present in this state and the
 36    child has been abandoned or it is necessary in an  emergency  to  protect  the
 37    child  because the child, or a sibling or parent of the child, is subjected to
 38    or threatened with mistreatment or abuse.
 39        (b)  If there is no previous child custody determination that is  entitled
 40    to  be enforced under this chapter and a child custody proceeding has not been
 41    commenced in a court of a state having jurisdiction under  sections  32-11-201
 42    through  32-11-203,  Idaho Code, a child custody determination made under this
 43    section remains in effect until an order is obtained from a court of  a  state
 44    having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code. If
 45    a  child  custody  proceeding has not been or is not commenced in a court of a
 46    state having jurisdiction under sections 32-11-201  through  32-11-203,  Idaho
 47    Code,  a  child  custody determination made under this section becomes a final
 48    determination, if it so provides and this state becomes the home state of  the
 49    child.
 50        (c)  If  there  is a previous child custody determination that is entitled
 51    to be enforced under this chapter, or a child custody proceeding has been com-
 52    menced in a court of a state  having  jurisdiction  under  sections  32-11-201
                                                                        
                                            7
                                                                        
  1    through 32-11-203, Idaho Code, any order issued by a court of this state under
  2    this  section must specify in the order a period that the court considers ade-
  3    quate to allow the person seeking an order to obtain an order from  the  state
  4    having  jurisdiction  under  sections 32-11-201 through 32-11-203, Idaho Code.
  5    The order issued in this state remains in effect until an  order  is  obtained
  6    from the other state within the period specified or the period expires.
  7        (d)  A  court  of  this state which has been asked to make a child custody
  8    determination under this section, upon being informed  that  a  child  custody
  9    proceeding  has  been  commenced in, or a child custody determination has been
 10    made by, a court of a  state  having  jurisdiction  under  Sections  32-11-201
 11    through  32-11-203,  Idaho  Code, shall immediately communicate with the other
 12    court. A court of this state which is exercising jurisdiction pursuant to sec-
 13    tions 32-11-201 through 32-11-203, Idaho Code,  upon  being  informed  that  a
 14    child  custody proceeding has been commenced in, or a child custody determina-
 15    tion has been made by, a court of another state under  a  statute  similar  to
 16    this  section  shall  immediately  communicate with the court of that state to
 17    resolve the emergency, protect the safety of the parties and  the  child,  and
 18    determine a period for the duration of the temporary order.
                                                                        
 19        32-11-205.  NOTICE  --  OPPORTUNITY  TO  BE HEARD -- JOINDER. (a) Before a
 20    child custody determination is made under this chapter, notice and an opportu-
 21    nity to be heard in accordance with the standards of section 32-11-108,  Idaho
 22    Code,  must  be  given to all persons entitled to notice under the law of this
 23    state as in child custody proceedings between residents  of  this  state,  any
 24    parent whose parental rights have not been previously terminated, and any per-
 25    son having physical custody of the child.
 26        (b)  This  chapter  does  not govern the enforceability of a child custody
 27    determination made without notice or an opportunity to be heard.
 28        (c)  The obligation to join a party and the right to intervene as a  party
 29    in  a  child  custody proceeding under this chapter are governed by the law of
 30    this state as in child custody proceedings between residents of this state.
                                                                        
 31        32-11-206. SIMULTANEOUS PROCEEDINGS. (a) Except as otherwise  provided  in
 32    section  32-11-204,  Idaho  Code,  a  court of this state may not exercise its
 33    jurisdiction under part 2 of this chapter if, at the time of the  commencement
 34    of  the  proceeding, a proceeding concerning the custody of the child has been
 35    commenced in a court of another state  having  jurisdiction  substantially  in
 36    conformity  with this chapter, unless the proceeding has been terminated or is
 37    stayed by the court of the other state because a court of this state is a more
 38    convenient forum under section 32-11-207, Idaho Code.
 39        (b)  Except as otherwise provided in  section  32-11-204,  Idaho  Code,  a
 40    court  of this state, before hearing a child custody proceeding, shall examine
 41    the court documents and other information supplied by the parties pursuant  to
 42    section  32-11-209,  Idaho  Code. If the court determines that a child custody
 43    proceeding has been commenced in a court in another state having  jurisdiction
 44    substantially  in  accordance with this chapter, the court of this state shall
 45    stay its proceeding and communicate with the court of the other state. If  the
 46    court  of  the state having jurisdiction substantially in accordance with this
 47    chapter does not determine that the court of this state is a more  appropriate
 48    forum, the court of this state shall dismiss the proceeding.
 49        (c)  In  a  proceeding to modify a child custody determination, a court of
 50    this state shall determine whether a proceeding to enforce  the  determination
 51    has  been  commenced in another state. If a proceeding to enforce a child cus-
 52    tody determination has been commenced in another state, the court may:
 53        (1)  Stay the proceeding for modification pending the entry of an order of
                                                                        
                                            8
                                                                        
  1        a court of the other state enforcing, staying, denying or  dismissing  the
  2        proceeding for enforcement;
  3        (2)  Enjoin  the  parties from continuing with the proceeding for enforce-
  4        ment; or
  5        (3)  Proceed with the modification under conditions it considers appropri-
  6        ate.
                                                                        
  7        32-11-207. INCONVENIENT FORUM. (a) A court of this state which has  juris-
  8    diction  under  this chapter to make a child custody determination may decline
  9    to exercise its jurisdiction at any time if it determines that it is an incon-
 10    venient forum under the circumstances and that a court of another state  is  a
 11    more  appropriate  forum.  The  issue of inconvenient forum may be raised upon
 12    motion of a party, the court's own motion or request of another court.
 13        (b)  Before determining whether it is an inconvenient forum,  a  court  of
 14    this  state  shall  consider  whether it is appropriate for a court of another
 15    state to exercise jurisdiction. For this purpose, the court  shall  allow  the
 16    parties to submit information and shall consider all relevant factors, includ-
 17    ing:
 18        (1)  Whether  domestic  violence has occurred and is likely to continue in
 19        the future and which state could best protect the parties and the child;
 20        (2)  The length of time the child has resided outside this state;
 21        (3)  The distance between the court in this state and  the  court  in  the
 22        state that would assume jurisdiction;
 23        (4)  The relative financial circumstances of the parties;
 24        (5)  Any  agreement  of the parties as to which state should assume juris-
 25        diction;
 26        (6)  The nature and location of the evidence required to resolve the pend-
 27        ing litigation, including testimony of the child;
 28        (7)  The ability of the court of each state to decide  the  issue  expedi-
 29        tiously and the procedures necessary to present the evidence; and
 30        (8)  The  familiarity of the court of each state with the facts and issues
 31        in the pending litigation.
 32        (c)  If a court of this state determines that it is an inconvenient  forum
 33    and  that  a court of another state is a more appropriate forum, it shall stay
 34    the proceedings upon condition that a child  custody  proceeding  be  promptly
 35    commenced  in  another designated state and may impose any other condition the
 36    court considers just and proper.
 37        (d)  A court of this state may decline to exercise its jurisdiction  under
 38    this  chapter  if a child custody determination is incidental to an action for
 39    divorce or another proceeding while  still  retaining  jurisdiction  over  the
 40    divorce or other proceeding.
                                                                        
 41        32-11-208.  JURISDICTION  DECLINED  BY  REASON  OF  CONDUCT. (a) Except as
 42    otherwise provided in section 32-11-204, Idaho Code, or by other law  of  this
 43    state,  if a court of this state has jurisdiction under this chapter because a
 44    person seeking to invoke its jurisdiction has engaged  in  unjustifiable  con-
 45    duct, the court shall decline to exercise its jurisdiction unless:
 46        (1)  The  parents and all persons acting as parents have acquiesced in the
 47        exercise of jurisdiction;
 48        (2)  A court of the state otherwise  having  jurisdiction  under  sections
 49        32-11-201  through  32-11-203, Idaho Code, determines that this state is a
 50        more appropriate forum under section 32-11-207, Idaho Code; or
 51        (3)  No court of any other state would have jurisdiction under the  crite-
 52        ria specified in sections 32-11-201 through 32-11-203, Idaho Code.
 53        (b)  If a court of this state declines to exercise its jurisdiction pursu-
                                                                        
                                            9
                                                                        
  1    ant to subsection (a) of this section, it may fashion an appropriate remedy to
  2    ensure  the  safety of the child and prevent a repetition of the unjustifiable
  3    conduct, including staying the proceeding until a child custody proceeding  is
  4    commenced  in  a  court  having  jurisdiction under sections 32-11-201 through
  5    32-11-203, Idaho Code.
  6        (c)  If a court dismisses a petition or  stays  a  proceeding  because  it
  7    declines  to exercise its jurisdiction pursuant to subsection (a) of this sec-
  8    tion, it shall assess against the party seeking  to  invoke  its  jurisdiction
  9    necessary  and  reasonable  expenses  including costs, communication expenses,
 10    attorney's fees, investigative fees, expenses for witnesses,  travel  expenses
 11    and  child  care  during  the course of the proceedings, unless the party from
 12    whom fees are sought establishes that the assessment would be clearly inappro-
 13    priate. The court may not assess fees, costs or expenses  against  this  state
 14    unless authorized by law other than this chapter.
                                                                        
 15        32-11-209.  INFORMATION  TO  BE SUBMITTED TO COURT. (a) In a child custody
 16    proceeding each party, in its first pleading  or  in  an  attached  affidavit,
 17    shall  give  information,  if  reasonably  ascertainable, under oath as to the
 18    child's present address or whereabouts, the places where the child  has  lived
 19    during  the  last  five  (5) years, and the names and present addresses of the
 20    persons with whom the child has lived during  that  period.  The  pleading  or
 21    affidavit must state whether the party:
 22        (1)  Has  participated, as a party or witness or in any other capacity, in
 23        any other proceeding concerning the custody  of  or  visitation  with  the
 24        child and, if so, identify the court, the case number, and the date of the
 25        child custody determination, if any;
 26        (2)  Knows  of  any  proceeding  that could affect the current proceeding,
 27        including proceedings for enforcement and proceedings relating to domestic
 28        violence, protective orders, termination of parental rights, and adoptions
 29        and, if so, identify the court, the case number, and  the  nature  of  the
 30        proceeding; and
 31        (3)  Knows  the  names and addresses of any person not a party to the pro-
 32        ceeding who has physical custody of the child or claims  rights  of  legal
 33        custody  or physical custody of, or visitation with, the child and, if so,
 34        the names and addresses of those persons.
 35        (b)  If the information required by subsection (a) of this section is  not
 36    furnished,  the  court, upon motion of a party or its own motion, may stay the
 37    proceeding until the information is furnished.
 38        (c)  If the declaration as to any of the items  described  in  subsections
 39    (a)(1)  through (3) of this section is in the affirmative, the declarant shall
 40    give additional information under oath as required by the court. The court may
 41    examine the parties under oath as to details of the information furnished  and
 42    other matters pertinent to the court's jurisdiction and the disposition of the
 43    case.
 44        (d)  Each  party has a continuing duty to inform the court of any proceed-
 45    ing in this or any other state that could affect the current proceeding.
                                                                        
 46        32-11-210. APPEARANCE OF PARTIES AND CHILD. (a) In a  child  custody  pro-
 47    ceeding in this state, the court may order a party to the proceeding who is in
 48    this state to appear before the court in person with or without the child. The
 49    court  may  order any person who is in this state and who has physical custody
 50    or control of the child to appear in person with the child.
 51        (b)  If a party to a child custody proceeding whose presence is desired by
 52    the court is outside this state, the court may order that a notice given  pur-
 53    suant  to  section  32-11-108,  Idaho  Code, include a statement directing the
                                                                        
                                            10
                                                                        
  1    party to appear in person with or without the child and  informing  the  party
  2    that failure to appear may result in a decision adverse to the party.
  3        (c)  The  court may enter any orders necessary to ensure the safety of the
  4    child and of any person ordered to appear under this section.
  5        (d)  If a party to a child custody proceeding who is outside this state is
  6    directed to appear under subsection (b) of this section or desires  to  appear
  7    personally  before  the court with or without the child, the court may require
  8    another party to pay reasonable and necessary travel and other expenses of the
  9    party so appearing and of the child.
                                                                        
 10                                        PART 3
 11                                     ENFORCEMENT
                                                                        
 12        32-11-301.  [RESERVED]
                                                                        
 13        32-11-302. ENFORCEMENT UNDER HAGUE CONVENTION. Under this chapter a  court
 14    of  this state may enforce an order for the return of the child made under the
 15    Hague convention on the civil aspects of international child abduction  as  if
 16    it were a child custody determination.
                                                                        
 17        32-11-303.  DUTY TO ENFORCE. (a) A court of this state shall recognize and
 18    enforce a child custody determination of a court of another state if the  lat-
 19    ter  court  exercised jurisdiction in substantial conformity with this chapter
 20    or the determination was made under factual circumstances meeting  the  juris-
 21    dictional  standards  of this chapter and the determination has not been modi-
 22    fied in accordance with this chapter.
 23        (b)  A court of this state may utilize any remedy  available  under  other
 24    law  of this state to enforce a child custody determination made by a court of
 25    another state. The remedies provided in this part 3 are cumulative and do  not
 26    affect  the availability of other remedies to enforce a child custody determi-
 27    nation.
                                                                        
 28        32-11-304. TEMPORARY VISITATION.  (a) A court of this state which does not
 29    have jurisdiction to modify a child custody determination, may issue a  tempo-
 30    rary order enforcing:
 31        (1)  A visitation schedule made by a court of another state; or
 32        (2)  The visitation provisions of a child custody determination of another
 33        state that does not provide for a specific visitation schedule.
 34        (b)  If  a  court  of this state makes an order under subsection (a)(2) of
 35    this section, it shall specify in the order a period that  it  considers  ade-
 36    quate to allow the petitioner to obtain an order from a court having jurisdic-
 37    tion under the criteria specified in part 2 of this chapter. The order remains
 38    in  effect  until  an  order  is  obtained  from the other court or the period
 39    expires.
                                                                        
 40        32-11-305. REGISTRATION OF CHILD CUSTODY DETERMINATION. (a) A  child  cus-
 41    tody  determination  issued  by  a court of another state may be registered in
 42    this state, with or without a simultaneous request for enforcement, by sending
 43    to the office of the clerk of any district court in this state:
 44        (1)  A letter or other document requesting registration;
 45        (2)  Two (2) copies, including one (1) certified copy, of  the  determina-
 46        tion  sought  to  be  registered, and a statement under penalty of perjury
 47        that to the best of the knowledge and belief of the person seeking  regis-
 48        tration the order has not been modified; and
 49        (3)  Except  as  otherwise  provided in section 32-11-209, Idaho Code, the
                                                                        
                                            11
                                                                        
  1        name and address of the person seeking registration and any parent or per-
  2        son acting as a parent who has been awarded custody or visitation  in  the
  3        child custody determination sought to be registered.
  4        (b)  On  receipt  of the documents required by subsection (a) of this sec-
  5    tion, the registering court shall:
  6        (1)  Cause the determination to be filed as a foreign  judgment,  together
  7        with  one  (1) copy of any accompanying documents and information, regard-
  8        less of their form; and
  9        (2)  Serve notice upon the persons named pursuant to subsection (a)(3)  of
 10        this section and provide them with an opportunity to contest the registra-
 11        tion in accordance with this section.
 12        (c)  The  notice  required by subsection (b)(2) of this section must state
 13    that:
 14        (1)  A registered determination is enforceable as of the date of the  reg-
 15        istration  in the same manner as a determination issued by a court of this
 16        state;
 17        (2)  A hearing to contest the validity  of  the  registered  determination
 18        must be requested within twenty (20) days after service of notice; and
 19        (3)  Failure  to  contest  the registration will result in confirmation of
 20        the child custody determination  and  preclude  further  contest  of  that
 21        determination with respect to any matter that could have been asserted.
 22        (d)  A  person  seeking to contest the validity of a registered order must
 23    request a hearing within twenty (20) days after service of the notice. At that
 24    hearing, the court shall confirm the registered order unless the  person  con-
 25    testing registration establishes that:
 26        (1)  The  issuing  court  did  not  have jurisdiction under part 2 of this
 27        chapter;
 28        (2)  The child custody determination sought  to  be  registered  has  been
 29        vacated,  stayed or modified by a court having jurisdiction to do so under
 30        part 2 of this chapter; or
 31        (3)  The person contesting registration was entitled to notice, but notice
 32        was not given in accordance with the standards of section 32-11-108, Idaho
 33        Code, in the proceedings before the court that issued the order for  which
 34        registration is sought.
 35        (e)  If a timely request for a hearing to contest the validity of the reg-
 36    istration  is  not  made, the registration is confirmed as a matter of law and
 37    the person requesting registration and all persons served must be notified  of
 38    the confirmation.
 39        (f)  Confirmation  of  a  registered order, whether by operation of law or
 40    after notice and hearing, precludes further contest of the order with  respect
 41    to any matter that could have been asserted at the time of registration.
                                                                        
 42        32-11-306.  ENFORCEMENT  OF  REGISTERED DETERMINATION. (a) A court of this
 43    state may grant any relief normally available under the law of this  state  to
 44    enforce  a  registered  child custody determination made by a court of another
 45    state.
 46        (b)  A court of this state shall recognize and enforce, but may  not  mod-
 47    ify, except in accordance with part 2 of this chapter, a registered child cus-
 48    tody determination of a court of another state.
                                                                        
 49        32-11-307. SIMULTANEOUS PROCEEDINGS. If a proceeding for enforcement under
 50    part  3  of  this  chapter is commenced in a court of this state and the court
 51    determines that a proceeding to modify the determination is pending in a court
 52    of another state having jurisdiction to modify the determination under part  2
 53    of  this  chapter,  the enforcing court shall immediately communicate with the
                                                                        
                                            12
                                                                        
  1    modifying court. The proceeding for enforcement continues unless the enforcing
  2    court, after consultation with the modifying court,  stays  or  dismisses  the
  3    proceeding.
                                                                        
  4        32-11-308.  EXPEDITED  ENFORCEMENT  OF  CHILD CUSTODY DETERMINATION. (a) A
  5    petition under part 3 of this chapter must be verified.  Certified  copies  of
  6    all orders sought to be enforced and of any order confirming registration must
  7    be  attached  to  the  petition. A copy of a certified copy of an order may be
  8    attached instead of the original.
  9        (b)  A petition for enforcement of  a  child  custody  determination  must
 10    state:
 11        (1)  Whether the court that issued the determination identified the juris-
 12        dictional basis it relied upon in exercising jurisdiction and, if so, what
 13        the basis was;
 14        (2)  Whether  the  determination  for which enforcement is sought has been
 15        vacated, stayed or modified by a court whose  decision  must  be  enforced
 16        under this chapter and, if so, identify the court, the case number and the
 17        nature of the proceeding;
 18        (3)  Whether  any proceeding has been commenced that could affect the cur-
 19        rent proceeding, including proceedings relating to domestic violence, pro-
 20        tective orders, termination of parental rights and adoptions and,  if  so,
 21        identify the court, the case number, and the nature of the proceeding;
 22        (4)  The  present  physical  address  of  the child and the respondent, if
 23        known;
 24        (5)  Whether relief in addition to the immediate physical custody  of  the
 25        child  and  attorney's  fees is sought, including a request for assistance
 26        from law enforcement officials and, if so, the relief sought; and
 27        (6)  If the child custody determination has been registered and  confirmed
 28        under section 32-11-305, Idaho Code, the date and place of registration.
 29        (c)  Upon the filing of a petition, the court shall issue an order direct-
 30    ing  the respondent to appear in person with or without the child at a hearing
 31    and may enter any order necessary to ensure the safety of the parties and  the
 32    child.  The hearing must be held on the next judicial day after service of the
 33    order unless that date is impossible.  In that event, the court shall hold the
 34    hearing on the first judicial day possible. The court may extend the  date  of
 35    hearing at the request of the petitioner.
 36        (d)  An  order  issued under subsection (c) of this section must state the
 37    time and place of the hearing and advise the respondent that  at  the  hearing
 38    the  court  will order that the petitioner may take immediate physical custody
 39    of the child and the  payment  of  fees,  costs  and  expenses  under  section
 40    32-11-312, Idaho Code, and may schedule a hearing to determine whether further
 41    relief is appropriate, unless the respondent appears and establishes that:
 42        (1)  The child custody determination has not been registered and confirmed
 43        under section 32-11-305, Idaho Code, and that:
 44             (A)  The issuing court did not have jurisdiction under part 2 of this
 45             chapter;
 46             (B)  The  child custody determination for which enforcement is sought
 47             has been vacated, stayed or modified by a court  having  jurisdiction
 48             to do so under part 2 of this chapter;
 49             (C)  The  respondent was entitled to notice, but notice was not given
 50             in accordance with the standards of section 32-11-108, Idaho Code, in
 51             the proceedings before the court that  issued  the  order  for  which
 52             enforcement is sought; or
 53        (2)  The  child  custody determination for which enforcement is sought was
 54        registered and confirmed under section 32-11-305, Idaho Code, but has been
                                                                        
                                            13
                                                                        
  1        vacated, stayed or modified by a court of a state having  jurisdiction  to
  2        do so under part 2 of this chapter.
                                                                        
  3        32-11-309.  SERVICE OF PETITION AND ORDER. Except as otherwise provided in
  4    section 32-11-311, Idaho Code, the petition and order must be served,  by  any
  5    method authorized by the law of this state, upon respondent and any person who
  6    has physical custody of the child.
                                                                        
  7        32-11-310.  HEARING  AND  ORDER.  (a)  Unless the court issues a temporary
  8    emergency order pursuant to section 32-11-204, Idaho Code, upon a finding that
  9    a petitioner is entitled to immediate physical custody of the child, the court
 10    shall order that the petitioner may take immediate  physical  custody  of  the
 11    child unless the respondent establishes that:
 12        (1)  The child custody determination has not been registered and confirmed
 13        under section 32-11-305, Idaho Code, and that:
 14             (A)  The issuing court did not have jurisdiction under part 2 of this
 15             chapter;
 16             (B)  The  child custody determination for which enforcement is sought
 17             has been vacated, stayed or modified by a court  of  a  state  having
 18             jurisdiction to do so under part 2 of this chapter; or
 19             (C)  The  respondent was entitled to notice, but notice was not given
 20             in accordance with the standards of section 32-11-108, Idaho Code, in
 21             the proceedings before the court that  issued  the  order  for  which
 22             enforcement is sought; or
 23        (2)  The  child  custody determination for which enforcement is sought was
 24        registered and confirmed under section 32-11-305, Idaho Code, but has been
 25        vacated, stayed or modified by a court of a state having  jurisdiction  to
 26        do so under part 2 of this chapter.
 27        (b)  The  court  shall award the fees, costs and expenses authorized under
 28    section 32-11-312, Idaho Code, and may grant additional  relief,  including  a
 29    request  for  the  assistance  of law enforcement officials, and set a further
 30    hearing to determine whether additional relief is appropriate.
 31        (c)  If a party called to testify refuses to answer on the ground that the
 32    testimony may be self-incriminating, the court may draw an  adverse  inference
 33    from the refusal.
 34        (d)  A  privilege against disclosure of communications between spouses and
 35    a defense of immunity based on the relationship of husband and wife or  parent
 36    and child may not be invoked in a proceeding under part 3 of this chapter.
                                                                        
 37        32-11-311.  WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD. (a) Upon the filing
 38    of a petition seeking enforcement of a child custody determination, the  peti-
 39    tioner  may  file a verified application for the issuance of a warrant to take
 40    physical custody of the child if the child is  immediately  likely  to  suffer
 41    serious physical harm or be removed from this state.
 42        (b)  If  the court, upon the testimony of the petitioner or other witness,
 43    finds that the child is imminently likely to suffer serious physical  harm  or
 44    be removed from this state, it may issue a warrant to take physical custody of
 45    the  child. The petition must be heard on the next judicial day after the war-
 46    rant is executed unless that date is impossible.  In  that  event,  the  court
 47    shall hold the hearing on the first judicial day possible. The application for
 48    the  warrant  must  include  the  statements required by section 32-11-308(b),
 49    Idaho Code.
 50        (c)  A warrant to take physical custody of a child must:
 51        (1)  Recite the facts upon which a conclusion of imminent serious physical
 52        harm or removal from the jurisdiction is based;
                                                                        
                                            14
                                                                        
  1        (2)  Direct law enforcement officers to take physical custody of the child
  2        immediately; and
  3        (3)  Provide for the placement of the child pending final relief.
  4        (d)  The respondent must be served with the petition,  warrant  and  order
  5    immediately after the child is taken into physical custody.
  6        (e)  A warrant to take physical custody of a child is enforceable through-
  7    out  this state. If the court finds on the basis of the testimony of the peti-
  8    tioner or other witness that a less intrusive remedy is not effective, it  may
  9    authorize  law enforcement officers to enter private property to take physical
 10    custody of the child. If required by exigent circumstances of  the  case,  the
 11    court  may  authorize law enforcement officers to make a forcible entry at any
 12    hour.
 13        (f)  The court may impose conditions upon placement of a child  to  ensure
 14    the appearance of the child and the child's custodian.
                                                                        
 15        32-11-312.  COSTS  -- FEES -- EXPENSES. (a) The court shall award the pre-
 16    vailing party, including a state, necessary and reasonable  expenses  incurred
 17    by  or  on  behalf  of  the  party,  including  costs, communication expenses,
 18    attorney's fees, investigative fees, expenses for witnesses,  travel  expenses
 19    and  child  care  during  the course of the proceedings, unless the party from
 20    whom fees or expenses are sought establishes that the award would  be  clearly
 21    inappropriate.
 22        (b)  The  court  may  not  assess  fees, costs or expenses against a state
 23    unless authorized by law other than this chapter.
                                                                        
 24        32-11-313. RECOGNITION AND ENFORCEMENT. A court of this state shall accord
 25    full faith and credit to an order issued by another state and consistent  with
 26    this  chapter  which  enforces  a  child  custody  determination by a court of
 27    another state unless the order has been vacated, stayed or modified by a court
 28    having jurisdiction to do so under part 2 of this chapter.
                                                                        
 29        32-11-314. APPEALS. An appeal may be taken from a final order  in  a  pro-
 30    ceeding under this chapter.  The court shall make every effort to expedite the
 31    appeal.  Unless  the  court  enters  a temporary emergency order under section
 32    32-11-204, Idaho Code, the enforcing court may not stay an order  enforcing  a
 33    child custody determination pending appeal.
                                                                        
 34        32-11-315.  ROLE  OF  COUNTY  PROSECUTING  ATTORNEY. (a) In a case arising
 35    under this chapter or involving the Hague convention on the civil  aspects  of
 36    international  child  abduction,  the county prosecuting attorney may take any
 37    lawful action, including resort to a proceeding  under  this  chapter  or  any
 38    other  available  civil  proceeding  to locate a child, obtain the return of a
 39    child, or enforce a child custody determination if there is:
 40        (1)  An existing child custody determination;
 41        (2)  A request to do so from a court in a pending child  custody  proceed-
 42        ing;
 43        (3)  A reasonable belief that a criminal statute has been violated; or
 44        (4)  A  reasonable  belief  that  the child has been wrongfully removed or
 45        retained in violation of the Hague convention  on  the  civil  aspects  of
 46        international child abduction.
 47        (b)  The  county  prosecuting  attorney  acting under this section acts on
 48    behalf of the court and may not represent any party.
                                                                        
 49        32-11-316. ROLE OF LAW ENFORCEMENT. At the request of the county prosecut-
 50    ing attorney acting under section 32-11-315, Idaho  Code,  a  law  enforcement
                                                                        
                                            15
                                                                        
  1    officer may take any lawful action reasonably necessary to locate a child or a
  2    party  and  assist the county prosecuting attorney with responsibilities under
  3    section 32-11-315, Idaho Code.
                                                                        
  4        32-11-317. COSTS AND EXPENSES. If the respondent  is  not  the  prevailing
  5    party,  the  court  may  assess against the respondent all direct expenses and
  6    costs incurred by the county prosecuting attorney and law enforcement officers
  7    under section 32-11-315 or 32-11-316, Idaho Code.
                                                                        
  8                                        PART 4
  9                               MISCELLANEOUS PROVISIONS
                                                                        
 10        32-11-401. APPLICATION AND CONSTRUCTION. In applying and  construing  this
 11    chapter,  otherwise  known  as  the  uniform  child  custody  jurisdiction and
 12    enforcement act, consideration must be given to the need to promote uniformity
 13    of the law with respect to its subject matter among states that enact it.
                                                                        
 14        32-11-402. SEVERABILITY CLAUSE. If any provision of this  chapter  or  its
 15    application to any person or circumstance is held invalid, the invalidity does
 16    not affect other provisions or applications of this chapter which can be given
 17    effect  without the invalid provision or application, and to this end the pro-
 18    visions of this chapter are severable.
                                                                        
 19        32-11-403.  [RESERVED]
                                                                        
 20        32-11-404.  [RESERVED]
                                                                        
 21        32-11-405. TRANSITIONAL PROVISION. A motion or other  request  for  relief
 22    made in a child custody proceeding or to enforce a child custody determination
 23    which  was  commenced before the effective date of this chapter as the uniform
 24    child custody jurisdiction and enforcement act  is  governed  by  the  law  in
 25    effect at the time the motion or other request was made.
                                                                        
 26        SECTION  3.  That  Section 39-6306, Idaho Code, be, and the same is hereby
 27    amended to read as follows:
                                                                        
 28        39-6306.  HEARING ON PETITION FOR PROTECTION ORDER -- RELIEF PROVIDED  AND
 29    REALIGNMENT  OF  DESIGNATION  OF  PARTIES. (1) Upon filing of a petition based
 30    upon a sworn affidavit for a protection order, the court shall hold a  hearing
 31    to  determine  whether the relief sought shall be granted within fourteen (14)
 32    days. If either party is represented by counsel at a hearing seeking entry  of
 33    a protection order, the court shall permit a continuance, if requested, of the
 34    proceedings  so  that counsel may be obtained by the other party. If the court
 35    finds that it is necessary for both parties to be represented by counsel,  the
 36    court  shall  enter appropriate orders to insure that counsel is retained. The
 37    order entered may require either the petitioner or respondent, or both, to pay
 38    for costs of counsel. Upon a showing that there is an  immediate  and  present
 39    danger  of  domestic  violence  to the petitioner the court may, if requested,
 40    order for a period not to exceed three (3) months that:
 41        (a)  Temporary custody of the minor children of the petitioner or  of  the
 42        parties  be  awarded  to  the petitioner or respondent if exercise of such
 43        jurisdiction is consistent with the provisions of  section  32-110311-204,
 44        Idaho Code, and consistent with prior custody orders entered by a court of
 45        competent  jurisdiction  unless  grounds exist pursuant to section 32-717,
 46        Idaho Code;
                                                                        
                                            16
                                                                        
  1        (b)  A party be restrained from committing acts of domestic violence;
  2        (c)  Exclude the respondent from the dwelling which the parties  share  or
  3        from the residence of the petitioner;
  4        (d)  The  respondent  be ordered to participate in treatment or counseling
  5        services. The council on domestic violence, in recognition of the particu-
  6        lar treatment requirements for batterers, shall  develop  minimal  program
  7        and treatment standards to be used as guidelines for recommending approval
  8        of batterer programs to the court;
  9        (e)  Other  relief be ordered as the court deems necessary for the protec-
 10        tion of a family or household member, including orders or directives to  a
 11        peace officer, as allowed under this chapter;
 12        (f)  The  respondent be required to pay service fees, and to reimburse the
 13        petitioner for costs incurred in bringing the action, including a  reason-
 14        able attorney's fee;
 15        (g)  The  respondent be restrained from contacting, molesting, interfering
 16        with or menacing the minor children whose custody is awarded to the  peti-
 17        tioner; and/or
 18        (h)  The  respondent  be  restrained  from  entering  any premises when it
 19        appears to the court that such  restraint  is  necessary  to  prevent  the
 20        respondent  from  contacting,  molesting, interfering with or menacing the
 21        petitioner or the minor children whose custody is  awarded  to  the  peti-
 22        tioner.
 23        (2)  Immediate  and present danger under this section includes, but is not
 24    limited to, situations in which the respondent  has  recently  threatened  the
 25    petitioner  with bodily harm or engaged in domestic violence against the peti-
 26    tioner.
 27        (3)  No order made under this chapter shall in any manner affect title  to
 28    real property.
 29        (4)  Relief  shall  not be denied because petitioner used reasonable force
 30    in self-defense against respondent, or because petitioner or respondent was  a
 31    minor at the time of the incident of domestic violence.
 32        (5)  Any relief granted by the protection order, other than a judgment for
 33    costs,  shall  be for a fixed period not to exceed three (3) months; provided,
 34    that an order obtained pursuant to this chapter may, upon motion and upon good
 35    cause shown, be renewed for additional terms not to exceed one (1)  year  each
 36    if  the requirements of this chapter are met. The motion to renew an order may
 37    be granted without a hearing, if not timely objected to by the  party  against
 38    whom the order was entered.
 39        (6)  In  providing  relief  under  this chapter, the court may realign the
 40    designation of the parties as "petitioner" and "respondent"  where  the  court
 41    finds  that  the original petitioner is the abuser and the original respondent
 42    is the victim of domestic violence.
                                                                        
 43        SECTION 4.  This act shall be in full force and effect on and  after  July
 44    1, 2000.

Amendment


 AS1298
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                                                     Moved by    Dunklin             
                                                                        
                                                     Seconded by Davis               
                                                                        
                                                                        
                                       IN THE SENATE
                             SENATE AMENDMENT TO S.B. NO. 1298
                                                                        
  1                               AMENDMENTS TO SECTION 2
  2        On page 3 of the printed bill, in line 23, delete "(a)"; and delete  lines
  3    27 through 31.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE
                            RS09412

This bill was drafted by the Uniform Law Commissioners and is 
called the Uniform Child Custody Jurisdiction and Enforcement 
Act (UCCJEA).  Current Idaho Law does not give first priority 
to the "home state" of the child in determining which state may 
exercise jurisdiction over a child custody dispute. Current law 
simply states that a legitimate exercise of jurisdiction must be 
honored by any other state until the basis for that exercise of 
jurisdiction no longer exists.  Under this bill any state that is 
not the "home state" of the child will defer to the "homestate," 
if there is one, in taking jurisdiction over a child custody dispute. 
Temporary emergency jurisdiction may be taken, but only long 
enough to secure the safety of the threatened person and to transfer 
the proceeding to the home state, or if none, to a state with another 
ground for jurisdiction. The UCCJEA also provides for continuing 
exclusive jurisdiction. If a state once takes jurisdiction over a 
child custody dispute, it retains Jurisdiction so long as that state, 
by its own determination, maintains a significant connection with 
the disputants or until all disputants have moved away from that state. 
In contrast, current Idaho law allows jurisdiction to shift if the 
initial ground for taking jurisdiction ceases to exist. Thus, if 
a state takes jurisdiction over a child custody dispute because that 
state is the home state of the child, and the child subsequently 
establishes a new home state, jurisdiction can shift to the new home 
state, even ifone parent remains in the child's original home state. 
RS09412 would not allow the jurisdictionto shift in this fashion, keeping 
it in the original home state so long as the parent remains there.  
The bill also provides rules for temporary emergency jurisdiction and 
enforcement of custody and visitation orders.

                           FISCAL NOTE 

None
Contact: Senator Betsy Dunklin
332-1382
Peter Marshall
Idaho Uniform Land Commissioner
331-1000 

STATEMENT OF PURPOSE/FISCAL NOTE                       S 1298