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S1073.................................................by HEALTH AND WELFARE
PARENTS - DISABLED - Amends existing law relating to parental rights of
individuals with disabilities to prohibit discrimination and, when making
evaluations, to require consideration of potential to use adaptive
equipment and supportive services.
02/07 Senate intro - 1st rdg - to printing
02/08 Rpt prt - to Health/Wel
02/15 Rpt out - rec d/p - to 2nd rdg
02/16 2nd rdg - to 3rd rdg
02/20 3rd rdg - PASSED - 32-0-3
AYES -- Boatright, Branch(Bartlett), Brandt, Bunderson, Burtenshaw,
Cameron, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde,
Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, Lodge,
Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner,
Stennett, Thorne, Wheeler, Whitworth, Williams,
NAYS -- None
Absent and excused -- Andreason, Danielson, Noh
Floor Sponsor -- King-Barrutia
Title apvd - to House
02/21 House intro - 1st rdg - to Health/Wel
03/09 Rpt out - to Gen Ord
03/14 Ret'd to Health/Wel
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature First Regular Session - 2001
IN THE SENATE
SENATE BILL NO. 1073
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO PARENTAL RIGHTS OF PERSONS WITH DISABILITIES; AMENDING SECTION
3 15-1-201, IDAHO CODE, TO DEFINE "DISABILITY," TO DEFINE "ADAPTIVE EQUIP-
4 MENT" AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 15-5-202, IDAHO
5 CODE, TO STRIKE REFERENCE TO INCAPACITY AND TO MAKE TECHNICAL CORRECTIONS;
6 AMENDING SECTION 15-5-204, IDAHO CODE, TO PROHIBIT DECISIONS OF GUARDIAN-
7 SHIP BASED EXCLUSIVELY ON DISABILITY OF THE POTENTIAL GUARDIAN; AMENDING
8 SECTION 16-1501, IDAHO CODE, TO PROHIBIT DISCRIMINATION IN THE DETERMINA-
9 TION OF ADOPTION OUTCOME AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC-
10 TION 16-1504, IDAHO CODE, TO STRIKE REFERENCE TO DISABILITY; AMENDING SEC-
11 TION 16-1506, IDAHO CODE, TO REQUIRE CONSIDERATION OF A DISABLED
12 INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT AND SER-
13 VICES; AMENDING SECTION 16-2001, IDAHO CODE, TO PROHIBIT DISCRIMINATION;
14 AMENDING SECTION 16-2002, IDAHO CODE, TO DEFINE "DISABILITY," TO DEFINE
15 "ADAPTIVE EQUIPMENT" AND TO PROVIDE A CORRECT CITATION; AMENDING SECTION
16 16-2005, IDAHO CODE, TO STRIKE REFERENCE TO MENTAL ILLNESS OR MENTAL DEFI-
17 CIENCY AS A CONDITION FOR TERMINATION; AMENDING SECTION 16-2007, IDAHO
18 CODE, TO FURTHER DESCRIBE CONDITIONS FOR APPOINTMENT OF GUARDIAN AD LITEM;
19 AMENDING SECTION 16-2008, IDAHO CODE, TO REQUIRE CONSIDERATION OF A DIS-
20 ABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT
21 AND SERVICES; AMENDING SECTION 32-717, IDAHO CODE, TO REQUIRE CONSIDER-
22 ATION OF A DISABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND SUPPOR-
23 TIVE EQUIPMENT AND SERVICES AND TO REQUIRE A STATEMENT OF FINDINGS; AND
24 AMENDING SECTION 32-1005, IDAHO CODE, TO PROHIBIT DISCRIMINATION AND TO
25 REQUIRE CONSIDERATION OF A DISABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAP-
26 TIVE AND SUPPORTIVE EQUIPMENT AND SERVICES.
27 Be It Enacted by the Legislature of the State of Idaho:
28 SECTION 1. That Section 15-1-201, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 15-1-201. GENERAL DEFINITIONS. Subject to additional definitions con-
31 tained in the subsequent chapters which are applicable to specific chapters or
32 parts, and unless the context otherwise requires, in this code:
33 (1) "Application" means a written request to the registrar for an order
34 of informal probate or appointment under part 3 of chapter 3 of this code.
35 (2) "Augmented estate" means the estate described in section 15-2-202 of
36 this code.
37 (3) "Beneficiary," as it relates to trust beneficiaries, includes a per-
38 son who has any present or future interest, vested or contingent, and also
39 includes the owner of an interest by assignment or other transfer and as it
40 relates to a charitable trust, includes any person entitled to enforce the
41 trust.
42 (4) "Child" includes any individual entitled to take as a child under
43 this code by intestate succession from the parent whose relationship is
2
1 involved and excludes any person who is only a stepchild, a foster child, a
2 grandchild or any more remote descendant.
3 (5) "Claims," in respect to estates of decedents and protected persons,
4 includes liabilities of the decedent or protected person whether arising in
5 contract, in tort or otherwise, and liabilities of the estate which arise at
6 or after the death of the decedent or after the appointment of a conservator,
7 including funeral expenses and expenses of administration. The term does not
8 include estate or inheritance taxes, other tax obligations arising from activ-
9 ities or transactions of the estate, demands or disputes regarding title of a
10 decedent or protected person to specific assets alleged to be included in the
11 estate.
12 (6) "Court" means the court or branch having jurisdiction in matters
13 relating to the affairs of decedents, minors, incapacitated and disabled per-
14 sons. This court in this state is known as the district court.
15 (7) "Conservator" means a person who is appointed by a court to manage
16 the estate of a protected person and includes limited conservators as
17 described by section 15-5-420, Idaho Code.
18 (8) "Determination of heirship of community property" shall mean that
19 determination required by the provisions of section 15-3-303 of this code upon
20 an application for informal probate not accompanied by presentation of a will.
21 (9) "Determination of heirship" shall mean that determination of heirship
22 required by section 15-3-409 of this code upon a finding of intestacy.
23 (10) "Devise," when used as a noun, means a testamentary disposition of
24 real or personal property and when used as a verb, means to dispose of real or
25 personal property by will.
26 (11) "Devisee" means any person designated in a will to receive a devise.
27 In the case of a devise to an existing trust or trustee, or to a trustee or
28 trust described by will, the trust or trustee is the devisee and the benefi-
29 ciaries are not devisees.
30 (12) "Disability" means, cause for a protective order as described by sub-
31 section (b)(1) of section 15-5-401 of this code with respect to an individual,
32 any mental or physical impairment which substantially limits one (1) or more
33 major life activities of the individual including, but not limited to, self-
34 care, manual tasks, walking, seeing, hearing, speaking, learning, or working,
35 or a record of such an impairment, or being regarded as having such an impair-
36 ment. Disability shall not include transvestism, transsexualism, pedophilia,
37 exhibitionism, voyeurism, other sexual behavior disorders, or psychoactive
38 substance use disorders, compulsive gambling, kleptomania, or pyromania. Sex-
39 ual preference or orientation is not considered an impairment or disability.
40 Whether an impairment substantially limits a major life activity shall be
41 determined without consideration of the effect of corrective or mitigating
42 measures used to reduce the effects of the impairment.
43 (13) "Distributee" means any person who has received property of a dece-
44 dent from his personal representative other than as a creditor or purchaser. A
45 testamentary trustee is a distributee only to the extent of distributed assets
46 or increment thereto remaining in his hands. A beneficiary of a testamentary
47 trust to whom the trustee has distributed property received from a personal
48 representative is a distributee of the personal representative. For the pur-
49 pose of this provision "testamentary trustee" includes a trustee to whom
50 assets are transferred by will, to the extent of the devised assets.
51 (14) "Emancipated minor" shall mean any male or female who has been mar-
52 ried.
53 (15) "Estate" means all property of the decedent, including community
54 property of the surviving spouse subject to administration, property of
55 trusts, and property of any other person whose affairs are subject to this
3
1 code as it exists from time to time during administration.
2 (16) "Exempt property" means that property of a decedent's estate which is
3 described in section 15-2-402 of this code.
4 (17) "Fiduciary" includes personal representative, guardian, conservator
5 and trustee.
6 (18) "Foreign personal representative" means a personal representative of
7 another jurisdiction.
8 (19) "Formal proceedings" means those conducted before a judge with notice
9 to interested persons.
10 (20) "Guardian" means a person who has qualified as a guardian of a minor
11 or incapacitated person pursuant to testamentary or court appointment and
12 includes limited guardians as described by section 15-5-304, Idaho Code, but
13 excludes one who is merely a guardian ad litem.
14 (21) "Heirs" means those persons, including the surviving spouse, who are
15 entitled under the statutes of intestate succession to the property of a dece-
16 dent.
17 (22) "Incapacitated person" is as defined in section 15-5-101 of this
18 code.
19 (23) "Informal proceedings" means those conducted without notice to inter-
20 ested persons by an officer of the court acting as a registrar for probate of
21 a will or appointment of a personal representative.
22 (24) "Interested person" includes heirs, devisees, children, spouses,
23 creditors, beneficiaries and any others having a property right in or claim
24 against a trust estate or the estate of a decedent, ward or protected person
25 which may be affected by the proceeding. It also includes persons having pri-
26 ority for appointment as personal representative, and other fiduciaries repre-
27 senting interested persons. The meaning as it relates to particular persons
28 may vary from time to time and must be determined according to the particular
29 purposes of, and matter involved in, any proceeding.
30 (25) "Issue" of a person means all his lineal descendants of all genera-
31 tions, with the relationship of parent and child at each generation being
32 determined by the definitions of child and parent contained in this code.
33 (26) "Lease" includes an oil, gas, or other mineral lease.
34 (27) "Letters" includes letters testamentary, letters of guardianship,
35 letters of administration, and letters of conservatorship.
36 (28) "Minor" means a male under eighteen (18) years of age or a female
37 under eighteen (18) years of age.
38 (29) "Mortgage" means any conveyance, agreement or arrangement in which
39 property is used as security.
40 (30) "Nonresident decedent" means a decedent who was domiciled in another
41 jurisdiction at the time of his death.
42 (31) "Organization" includes a corporation, government or governmental
43 subdivision or agency, business trust, estate, trust, partnership or associa-
44 tion, two (2) or more persons having a joint or common interest, or any other
45 legal entity.
46 (32) "Parent" includes any person entitled to take, or who would be enti-
47 tled to take if the child died without a will, as a parent under this code by
48 intestate succession from the child whose relationship is in question and
49 excludes any person who is only a stepparent, foster parent, or grandparent.
50 (33) "Person" means an individual, a corporation, an organization, or
51 other legal entity.
52 (34) "Personal representative" includes executor, administrator, successor
53 personal representative, special administrator, and persons who perform sub-
54 stantially the same function under the law governing their status. "General
55 personal representative" excludes special administrator.
4
1 (35) "Petition" means a written request to the court for an order after
2 notice.
3 (36) "Proceeding" includes action at law and suit in equity.
4 (37) "Property" includes both real and personal property or any interest
5 therein and means anything that may be the subject of ownership.
6 (38) "Protected person" is as defined in section 15-5-101 of this code.
7 (39) "Protective proceeding" is as defined in section 15-5-101 of this
8 code.
9 (39A40) "Quasi-community property" is the property defined by section
10 15-2-201 of this code.
11 (401) "Registrar" refers to magistrates or judges of the district court
12 who shall perform the functions of registrar as provided in section 15-1-307
13 of this code.
14 (412) "Security" includes any note, stock, treasury stock, bond, deben-
15 ture, evidence of indebtedness, certificate of interest or participation in an
16 oil, gas or mining title or lease or in payments out of production under such
17 a title or lease, collateral trust certificate, transferable share, voting
18 trust certificate or, in general, any interest or instrument commonly known as
19 a security, or any certificate of interest or participation, any temporary or
20 interim certificate, receipt or certificate of deposit for, or any warrant or
21 right to subscribe to or purchase, any of the foregoing.
22 (423) "Settlement," in reference to a decedent's estate, includes the full
23 process of administration, distribution and closing.
24 (434) "Special administrator" means a personal representative as described
25 by sections 15-3-614 through 15-3-618 of this code.
26 (445) "State" includes any state of the United States, the District of
27 Columbia, the Commonwealth of Puerto Rico, and any territory or possession
28 subject to the legislative authority of the United States.
29 (456) "Successor personal representative" means a personal representative,
30 other than a special administrator, who is appointed to succeed a previously
31 appointed personal representative.
32 (467) "Successors" means those persons, other than creditors, who are
33 entitled to property of a decedent under his will or this code.
34 (478) "Supervised administration" refers to the proceedings described in
35 part 5, chapter 3, of this code.
36 (489) "Testacy proceeding" means a proceeding to establish a will or
37 determine intestacy.
38 (4950) "Trust" includes any express trust, private or charitable, with
39 additions thereto, wherever and however created. It also includes a trust cre-
40 ated or determined by judgment or decree under which the trust is to be admin-
41 istered in the manner of an express trust. "Trust" excludes other constructive
42 trusts, and it excludes resulting trusts, conservatorships, personal represen-
43 tatives, trust accounts as defined in chapter 6 of this code, custodial
44 arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
45 viding for certificates to be issued to beneficiaries, common trust funds,
46 voting trusts, security arrangements, liquidation trusts, and trusts for the
47 primary purpose of paying debts, dividends, interest, salaries, wages, prof-
48 its, pensions, or employee benefits of any kind, and any arrangement under
49 which a person is nominee or escrowee for another.
50 (501) "Trustee" includes an original, additional, or successor trustee,
51 whether or not appointed or confirmed by court.
52 (512) "Ward" is as defined in section 15-5-101 of this code.
53 (523) "Will" is a testamentary instrument and includes codicil and any
54 testamentary instrument which merely appoints an executor or revokes or
55 revises another will.
5
1 (534) "Separate property" includes all property of either the husband or
2 the wife owned by him or her before marriage, and that acquired afterward
3 either by gift, bequest, devise or descent, or that which either he or she
4 acquires with proceeds of his or her separate property, by way of moneys or
5 other property.
6 (545) "Community property" includes all other property acquired after mar-
7 riage by either husband or wife, including the rents and profits of the sepa-
8 rate property of the husband and wife, unless, by the instrument by which any
9 such property is acquired by the wife, it is provided that the rents and prof-
10 its thereof be applied to her sole and separate use. Real property conveyed by
11 one (1) spouse to the other shall be presumed to be the sole and separate
12 estate of the grantee.
13 (56) "Adaptive equipment" means any piece of equipment, product system,
14 or any item, whether acquired commercially off the shelf, modified, or custom-
15 ized, that is used to increase, maintain, or improve functional parenting
16 capabilities of a parent with a disability.
17 SECTION 2. That Section 15-5-202, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 15-5-202. TESTAMENTARY APPOINTMENT OF GUARDIAN OF MINOR. The parent of a
20 minor may appoint by will a guardian or of an unmarried minor. Subject to the
21 right of the minor under section 15-5-203 of this Ppart, a testamentary
22 appointment becomes effective upon filing the guardian's acceptance in the
23 court in which the will is probated, if before acceptance, both parents are
24 dead. or the surviving parent is adjudged incapacitated. If both parents are
25 dead, an effective appointment by the parent who died later has priority. This
26 state recognizes a testamentary appointment effected by filing the guardian's
27 acceptance under a will probated in another state which is the testator's
28 domicile. Written notice of acceptance of the appointment must be given by the
29 guardian to the minor and to the person having his care or to his nearest
30 adult relation immediately upon acceptance of appointment.
31 SECTION 3. That Section 15-5-204, Idaho Code, be, and the same is hereby
32 amended to read as follows:
33 15-5-204. COURT APPOINTMENT OF GUARDIAN OF MINOR -- CONDITIONS FOR
34 APPOINTMENT. The court may appoint a guardian for an unmarried minor if all
35 parental rights of custody have been terminated by prior court order or upon a
36 finding that the child has been neglected, abused, abandoned, or whose parents
37 are unable to provide a stable home environment. "Abandoned" means the failure
38 of the parent to maintain a normal parental relationship with the child
39 including, but not limited to, reasonable support or regular contact. Failure
40 to maintain a normal parental relationship with the child without just cause
41 for a period of six (6) months shall constitute prima facie evidence of aban-
42 donment. In all cases, the court shall consider the best interests of the
43 child as the primary factor in the determination whether to appoint, and whom
44 to appoint, as a guardian for such child. In determining the choice of a
45 guardian for an unmarried minor, the advanced age or disability of a potential
46 guardian shall not, in and of itself, be used as a criterion of the suitabil-
47 ity of the potential guardian so long as the potential guardian is otherwise
48 suitable. A guardian appointed by will as provided in section 15-5-202 of this
49 part whose appointment has not been prevented or nullified under section
50 15-5-203 of this part has priority over any guardian who may be appointed by
51 the court but the court may proceed with an appointment nonetheless upon a
6
1 finding that the testamentary guardian has failed to accept the testamentary
2 appointment within thirty (30) days after notice of the guardianship proceed-
3 ing.
4 SECTION 4. That Section 16-1501, Idaho Code, be, and the same is hereby
5 amended to read as follows:
6 16-1501. MINORS AND ADULTS MAY BE ADOPTED. Any minor child may be adopted
7 by any adult person residing in and having residence in Idaho, in the cases
8 and subject to the rules prescribed in this chapter.
9 (1) Persons not minors may be adopted by a resident adult in cases where
10 the person adopting has sustained the relation of parent to such adopted per-
11 son:
12 (ia) fFor a period in excess of one (1) year while the person was a
13 minor; or
14 (iib) fFor such period of time or in such manner that the court after
15 investigation finds a substantial family relationship has been created.
16 (2) Nothing in this chapter shall be construed to allow discrimination on
17 the basis of race, religion, gender, national origin, age or disability,
18 except that race may be considered to the extent necessary to comply with the
19 Indian child welfare act.
20 (a) Evaluations of parental fitness shall be free of bias and shall take
21 into account the use of adaptive equipment and supportive services for
22 parents with disabilities, the availability of such equipment or services
23 and any obligation of any person or agency to provide such equipment or
24 services.
25 (b) "Disability," for purposes of this chapter, means with respect to an
26 individual, any mental or physical impairment which substantially limits
27 one (1) or more major life activities of the individual including, but not
28 limited to, self-care, manual tasks, walking, seeing, hearing, speaking,
29 learning, or working, or a record of such an impairment, or being regarded
30 as having such an impairment. Disability shall not include transvestism,
31 transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behav-
32 ior disorders, or psychoactive substance use disorders, compulsive gam-
33 bling, kleptomania, or pyromania. Sexual preference or orientation is not
34 considered an impairment or disability. Whether an impairment substan-
35 tially limits a major life activity shall be determined without consider-
36 ation of the effect of corrective or mitigating measures used to reduce
37 the effects of the impairment.
38 (c) "Adaptive equipment," for purposes of this chapter, means any piece
39 of equipment, product system, or any item, whether acquired commercially
40 off the shelf, modified, or customized, that is used to increase, main-
41 tain, or improve functional parenting capabilities of a parent with a dis-
42 ability.
43 SECTION 5. That Section 16-1504, Idaho Code, be, and the same is hereby
44 amended to read as follows:
45 16-1504. NECESSARY CONSENT TO ADOPTION. (1) Consent to adoption is
46 required from:
47 (a) The adoptee, if he is more than twelve (12) years of age, unless he
48 does not have the mental capacity to consent;
49 (b) Both parents or the surviving parent of an adoptee who was conceived
50 or born within a marriage, unless the adoptee is eighteen (18) years of
51 age or older;
7
1 (c) The mother of an adoptee born outside of marriage;
2 (d) Any biological parent who has been adjudicated to be the child's bio-
3 logical father by a court of competent jurisdiction prior to the mother's
4 execution of consent;
5 (e) An unmarried biological father of an adoptee only if the requirements
6 and conditions of subsection (2)(a) or (b) of this section have been
7 proven;
8 (f) Any legally appointed custodian or guardian of the adoptee;
9 (g) The guardian or conservator of an disabled or incapacitated adult, if
10 one has been appointed;
11 (h) The adoptee's spouse, if any; and
12 (i) An unmarried biological father who has filed a voluntary acknowledg-
13 ment of paternity with the vital statistics unit of the department of
14 health and welfare pursuant to section 7-1106, Idaho Code; and
15 (j) The father of an illegitimate child who has adopted the child by
16 acknowledgment pursuant to section 16-1510, Idaho Code.
17 (2) In accordance with subsection (1) of this section, the consent of an
18 unmarried biological father is necessary only if the father has strictly com-
19 plied with the requirements of this section.
20 (a) (i) With regard to a child who is placed with adoptive parents more
21 than six (6) months after birth, an unmarried biological father shall
22 have developed a substantial relationship with the child, taken some
23 measure of responsibility for the child and the child's future, and
24 demonstrated a full commitment to the responsibilities of parenthood
25 by financial support of the child, of a fair and reasonable sum and
26 in accordance with the father's ability, when not prevented from
27 doing so by the person or authorized agency having lawful custody of
28 the child, and either:
29 1. Visiting the child at least monthly when physically and
30 financially able to do so, and when not prevented from doing so
31 by the person or authorized agency having lawful custody of the
32 child; or
33 2. Have regular communication with the child or with the person
34 or agency having the care or custody of the child, when physi-
35 cally and financially unable to visit the child, and when not
36 prevented from doing so by the person or authorized agency hav-
37 ing lawful custody of the child.
38 (ii) The subjective intent of an unmarried biological father,
39 whether expressed or otherwise, unsupported by evidence of acts spec-
40 ified in this subsection shall not preclude a determination that the
41 father failed to meet the requirements of this subsection.
42 (iii) An unmarried biological father who openly lived with the child
43 for a period of six (6) months within the one (1) year period after
44 the birth of the child and immediately preceding placement of the
45 child with adoptive parents, and who openly held himself out to be
46 the father of the child during that period, shall be deemed to have
47 developed a substantial relationship with the child and to have
48 otherwise met the requirements of this subsection.
49 (b) With regard to a child who is under six (6) months of age at the time
50 he is placed with adoptive parents, an unmarried biological father shall
51 have manifested a full commitment to his parental responsibilities by per-
52 forming all of the acts described in this subsection prior to the place-
53 ment for adoption of the child in the home of prospective parents or prior
54 to the date of commencement of any proceeding to terminate the parental
55 rights of the birth mother, whichever event occurs first. The father
8
1 shall:
2 (i) Commence proceedings to establish paternity under section
3 7-1111, Idaho Code, and file with that court a sworn affidavit stat-
4 ing that he is fully able and willing to have full custody of the
5 child, setting forth his plans for the care of the child, and agree-
6 ing to a court order of child support and the payment of expenses
7 incurred in connection with the mother's pregnancy and the child's
8 birth;
9 (ii) File a notice of his commencement of proceedings to establish
10 his paternity of the child with the vital statistics unit of the
11 department of health and welfare pursuant to section 16-1513, Idaho
12 Code; and
13 (iii) If he had actual knowledge of the pregnancy, pay a fair and
14 reasonable amount of the expenses incurred in connection with the
15 mother's pregnancy and the child's birth, in accordance with his
16 means, and when not prevented from doing so by the person or autho-
17 rized agency having lawful custody of the child.
18 (3) An unmarried biological father whose consent is required under sub-
19 section (1) or (2) of this section may nevertheless lose his right to consent
20 if the court determines, in accordance with the requirements and procedures of
21 the termination of parent and child relationship act, sections 16-2001 through
22 16-2015, Idaho Code, that his rights should be terminated, based on the peti-
23 tion of any party as set forth in section 16-2004, Idaho Code.
24 (4) If there is no showing that an unmarried biological father has con-
25 sented to or waived his rights regarding a proposed adoption, the petitioner
26 shall file with the court a certificate from the vital statistics unit of the
27 department of health and welfare, signed by the state registrar of vital sta-
28 tistics, stating that a diligent search has been made of the registry of
29 notices from putative fathers, of a child born out of wedlock, and that the
30 putative father involved has not filed notice of his commencement of proceed-
31 ings to establish his paternity, or if a filing is found, stating the name of
32 the putative father and the time and date of filing. That certificate shall be
33 filed with the court prior to the entrance of the final decree of adoption.
34 (5) An unmarried biological father who does not fully and strictly comply
35 with each of the conditions provided in this section, is deemed to have waived
36 and surrendered any right in relation to the child, including the right to
37 notice of any judicial proceeding in connection with the adoption of the
38 child, and his consent to the adoption of the child is not required.
39 (6) A minor parent has the power to consent to the adoption of his or her
40 child. That consent is valid and has the same force and effect as a consent
41 executed by an adult parent. A minor parent, having executed a consent, cannot
42 revoke that consent upon reaching the age of majority or otherwise becoming
43 emancipated.
44 (7) No consent shall be required of, nor notice given to, any person
45 whose parental relationship to such child shall have been terminated in accor-
46 dance with the provisions of either chapter 16 or 20, title 16, Idaho Code, or
47 by a court of competent jurisdiction of a sister state under like proceedings;
48 or in any other manner authorized by the laws of a sister state. Where a vol-
49 untary child placement agency licensed by the state in which it does business
50 is authorized to place a child for adoption and to consent to such child's
51 adoption under the laws of such state, the consent of such agency to the adop-
52 tion of such child in a proceeding within the state of Idaho shall be valid
53 and no further consents or notices shall be required.
54 (8) The legislature finds that an unmarried biological father who resides
55 in another state may not, in every circumstance, be reasonably presumed to
9
1 know of, and strictly comply with, the requirements of this chapter. Therefore
2 when all of the following requirements have been met, that unmarried biologi-
3 cal father may contest an adoption, prior to finalization of the decree of
4 adoption, and assert his interest in the child:
5 (a) The unmarried biological father resides and has resided in another
6 state where the unmarried mother was also located or resided;
7 (b) The mother left that state without notifying or informing the unmar-
8 ried biological father that she could be located in the state of Idaho;
9 (c) The unmarried biological father has, through every reasonable means,
10 attempted to locate the mother but does not know or have reason to know
11 that the mother is residing in the state of Idaho; and
12 (d) The unmarried biological father has complied with the most stringent
13 and complete requirements of the state where the mother previously resided
14 or was located, in order to protect and preserve his parental interest and
15 rights in the child in cases of adoption.
16 (9) Notwithstanding section 7-1107, Idaho Code, a proceeding to establish
17 paternity filed pursuant to this section may be filed prior to the birth of
18 the child.
19 SECTION 6. That Section 16-1506, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 16-1506. PROCEEDINGS ON ADOPTION. (1) Proceedings to adopt a child shall
22 be commenced by the filing of a petition together with a copy thereof. Said
23 petition shall be initiated by the person or persons proposing to adopt the
24 child and shall be filed with the district court of the county in which said
25 person or persons reside. The petitioners shall have resided and maintained a
26 dwelling within the state of Idaho for at least six (6) consecutive months
27 prior to the filing of a petition. The petition shall set forth the name and
28 address of the petitioner or petitioners, the name of the child proposed to be
29 adopted and the name by which the person to be adopted shall be known if and
30 when adopted, the degree of relationship of the child, if any, to the peti-
31 tioner or petitioners and the names of any person or agency whose consent to
32 said adoption is necessary. At the time fixed for hearing such petition the
33 person adopting a child, and the child adopted, and the spouse of petitioner
34 if a natural parent of the child, must appear before the court of the county
35 wherein the petition was filed. Petitioner shall at such time execute an
36 agreement to the effect that the child shall be adopted and treated in all
37 respects as his own lawful child should be treated.
38 (2) Any person or persons whose consent is required shall execute such
39 consent in writing, in a form consistent with the provisions of subsection f.
40 of section 16-2005, Idaho Code, which consent being filed in the court where
41 the application is made, shall be deemed a sufficient appearance on the part
42 of such person or persons. If any adoptive parent, or a person not a minor
43 being adopted by a resident adult under the provisions of section 16-1501,
44 Idaho Code, is a member of the armed services and is unable to attend the
45 hearing, his appearance and testimony shall be received by means of deposi-
46 tion, which shall be filed in the court at the time of the hearing.
47 (3) Prior to the placement for adoption of any child in the home of pro-
48 spective adoptive parents, it shall be required that a thorough social inves-
49 tigation of the prospective adoptive family and all of its members, consistent
50 with the rules regarding such investigations promulgated by the department of
51 health and welfare, shall be completed and that a positive recommendation for
52 adoptive placement shall have been made. The social investigation may be per-
53 formed by any individual who meets the requirements of the law. The investiga-
10
1 tion of any prospective adoptive parent with a disability shall take into
2 account the use of adaptive equipment and supportive services, and shall be
3 conducted by, or with the assistance of, an individual with expertise in the
4 use of such equipment and services. A copy of the study must be submitted to
5 the department and the department may impose a reasonable fee, not to exceed
6 fifty dollars ($50.00), for oversight of such privately conducted studies. In
7 those instances where the prospective adoptive parent is married to the birth
8 parent or is the grandparent of the child to be adopted, such social investi-
9 gation shall be completed with regard to the prospective adoptive parent only
10 upon order of the court. In exigent circumstances where the prospective adop-
11 tive parents are determined by the court to have been unable to complete a
12 social investigation of the family with a positive recommendation prior to the
13 time the child is placed in the home, the child shall remain in the home
14 unless the court determines the best interests of the child are served by
15 other placement. If exigent circumstances exist, a social investigation shall
16 be initiated within five (5) days of placement. Once initiated, all studies
17 shall be completed within sixty (60) days. Upon the filing of a petition to
18 adopt a minor child by a person unrelated to the child or unmarried to a natu-
19 ral parent of the child and at the discretion of the court upon the filing of
20 any other petition for adoption, a copy of such petition, together with a
21 statement containing the full names and permanent addresses of the child and
22 the petitioners, shall be served by the court receiving the petition within
23 five (5) days on the director of the department of health and welfare by reg-
24 istered mail or personal service. If no private investigation is conducted, it
25 shall then be the duty of the said director, through the personnel of the
26 department or through such qualified child-placing children's adoption agency
27 incorporated under chapter 3, title 30, Idaho Code, as the director may desig-
28 nate, to verify the allegations of the petition, and as soon as possible not
29 exceeding thirty (30) days after service of the petition on the director to
30 make a thorough investigation of the matter to include in all cases informa-
31 tion as to the alleged date and place of birth and as to parentage of the
32 child to be adopted as well as the source of all such information and report
33 his findings in writing to the court. The investigative report shall include
34 reasonably known or available medical and genetic information regarding both
35 natural parents and sources of such information as well as reasonably known or
36 available providers of medical care and services to the natural parents. A
37 copy of all medical and genetic information compiled in the investigation
38 shall be made available to the adopting family by the department or other
39 investigating children's adoption agency prior to entry of the final order of
40 adoption. The petition, statement and all other papers, records or files
41 relating to the adoption, including the preplacement investigation and recom-
42 mendation, shall be returned to the court with the investigative report. The
43 department of health and welfare or other children's adoption agency may
44 require the petitioner to pay all or any part of the costs of the investiga-
45 tion. If the report disapproves of the adoption of the child, motion may be
46 made to the court to dismiss the petition.
47 (4) Proceedings for termination of parent-child relationship in accor-
48 dance with chapter 20, title 16, Idaho Code, and proceedings for adoption may
49 be consolidated and determined at one (1) hearing provided that all of the
50 requirements of this chapter as well as chapter 20, title 16, Idaho Code, be
51 fully complied with. Nothing in either chapter shall be construed as limiting
52 the initiation of any petition for approval of a verified financial plan for
53 adoption expenses pursuant to section 18-1511, Idaho Code, prior to the birth
54 of the child which is the subject of any adoption proceeding. In all disputed
55 matters under this chapter or chapter 20, title 16, Idaho Code, the paramount
11
1 criterion for consideration and determination by the court shall be the best
2 interests of the child.
3 (5) Proceedings for the adoption of an adult shall be as provided in sub-
4 section (1) of this section and any consents required shall be executed as
5 provided in subsection (2) of this section. Upon a finding by the court that
6 the consent of all persons for whom consent is required has been given and
7 that the requirements of section 16-1501, Idaho Code, have been proven to the
8 satisfaction of the court, the court shall enter an order granting the adop-
9 tion. In cases where the adult proposed to be adopted is incapacitated or dis-
10 abled, the court may require that an investigation be performed. The form and
11 extent of the investigation to be undertaken may be as provided in subsection
12 (3) of this section, or as otherwise ordered by the court. If an investigation
13 is performed, the court must review and approve the findings of the investiga-
14 tion before issuing an order approving the adoption.
15 SECTION 7. That Section 16-2001, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 16-2001. PURPOSE. The purpose of this act is to provide for voluntary and
18 involuntary severance of the parent and child relationship and for substitu-
19 tion of parental care and supervision by judicial process, thereby safeguard-
20 ing the rights and interests of all parties concerned and promoting their wel-
21 fare and that of the state of Idaho.
22 Nothing in this chapter shall be construed to allow discrimination on the
23 basis of race, religion, gender, national origin, age or disability, except
24 that race may be considered to the extent necessary to comply with the Indian
25 child welfare act.
26 Implicit in this act is the philosophy that wherever possible family life
27 should be strengthened and preserved and that the issue of severing the parent
28 and child relationship is of such vital importance as to require a judicial
29 determination in place of attempts at severance by contractual arrangements,
30 express or implied, for the surrender and relinquishment of children.
31 SECTION 8. That Section 16-2002, Idaho Code, be, and the same is hereby
32 amended to read as follows:
33 16-2002. DEFINITIONS. When used in this act, unless the text otherwise
34 requires:
35 a. "Court" means the district court.
36 b. "Child" or "minor" means a person less than eighteen (18) years of
37 age.
38 c. The singular includes the plural, the plural the singular, and the
39 masculine the feminine, when consistent with the intent of the act.
40 d. "Neglected" used with respect to a child refers to those situations in
41 which the child lacks proper support or parental care necessary for his
42 health, morals, and well-being.
43 e. "Abuse" used with respect to a child refers to those situations in
44 which physical cruelty in excess of that required for reasonable disciplinary
45 purposes has been inflicted by a parent or other person in whom legal custody
46 of the child has been vested.
47 f. "Legal custody" means status created by court order embodying the fol-
48 lowing rights and responsibilities:
49 (1) The right to physical possession of the child;
50 (2) The right and duty to protect, train and discipline the child; and
51 (3) The responsibility to provide the child with food, shelter, education
12
1 and medical care;
2 provided that such rights and responsibilities shall be exercised subject to
3 the powers, rights, duties and responsibilities of the guardian of the person.
4 g. "Guardianship of the person" means those rights and duties imposed
5 upon a person appointed as guardian of a minor under the laws of Idaho. It
6 includes but is not necessarily limited either in number or kind to:
7 (1) The authority to consent to marriage, to enlistment in the armed
8 forces of the United States, and to major medical, psychiatric and surgi-
9 cal treatment; to represent the minor in legal actions; and to make other
10 decisions concerning the child of substantial legal significance;
11 (2) The authority and duty of reasonable visitation, except to the extent
12 that such right of visitation has been limited by court order;
13 (3) The rights and responsibilities of legal custody except where legal
14 custody has been vested in another individual or in an authorized child
15 placement agency;
16 (4) When the parent and child relationship has been terminated by judi-
17 cial decree with respect to the parents, or only living parent, or when
18 there is no living parent, the authority to consent to the adoption of the
19 child and to make any other decision concerning the child which the
20 child's parents could make.
21 h. "Guardian ad litem" means a person appointed as such pursuant to law,
22 by the court to protect the interest of a minor or an incompetent in a case
23 before the court.
24 i. "Authorized agency" means the state department of health and welfare
25 or a voluntary child placement agency licensed to care for and place children
26 by the state department of health and welfare.
27 j. "Parent" means:
28 (1) The birth mother or the adoptive mother;
29 (2) The adoptive father;
30 (3) The biological father of a child conceived or born during the
31 father's marriage to the birth mother;
32 (4) The unmarried biological father whose consent to an adoption of the
33 child is required pursuant to section 156-1504, Idaho Code;
34 (5) A man whose paternity is established by court decree; and
35 (6) An unmarried biological father who has filed a voluntary acknowledg-
36 ment of paternity with the vital statistics unit of the department of
37 health and welfare pursuant to section 7-1106, Idaho Code; and
38 (7) The father of an illegitimate child who has adopted the child by
39 acknowledgment pursuant to section 16-1510, Idaho Code.
40 k. "Presumptive father" means a man who is or was married to the birth
41 mother and the child is born during the marriage or within three hundred (300)
42 days after the marriage is terminated.
43 l. "Parent and child relationship" includes all rights, privileges,
44 duties and obligations existing between parent and child, including inheri-
45 tance rights, and shall be construed to include adoptive parents.
46 m. "Protective supervision" means a legal status created by court order
47 in proceedings not involving violations of the law but where the legal custody
48 of the child is subject to change, whereby the child is permitted to remain in
49 his home under the supervision of an authorized agency designated by the court
50 and is subject to return to the court during the period of protective supervi-
51 sion.
52 n. "Parties" includes the child and the petitioners.
53 o. "Rape," (18-6101, Idaho Code); "lewd conduct with a minor child under
54 sixteen," (18-1508, Idaho Code); "sexual abuse of a child under the age of
55 sixteen years," (18-1506, Idaho Code); and "incest" (18-6602, Idaho Code)
13
1 shall be defined as provided in the applicable provisions of title 18, Idaho
2 Code, but for purposes of this chapter shall not include any circumstance
3 where the parents of the child in question were married at the time of concep-
4 tion.
5 p. "Unmarried biological father," as used in this chapter and chapter 15,
6 title 16, Idaho Code, means the biological father of a child, which biological
7 father was not married to the child's mother at the time the child was con-
8 ceived or born.
9 q. "Unmarried biological mother," as used in this chapter, means the bio-
10 logical mother of a child, which biological mother was not married to the
11 child's biological father at the time the child was conceived or born.
12 r. "Disability" means, with respect to an individual, any mental or phys-
13 ical impairment which substantially limits one (1) or more major life activi-
14 ties of the individual including, but not limited to, self-care, manual tasks,
15 walking, seeing, hearing, speaking, learning, or working, or a record of such
16 an impairment, or being regarded as having such an impairment. Disability
17 shall not include transvestism, transsexualism, pedophilia, exhibitionism,
18 voyeurism, other sexual behavior disorders, or psychoactive substance use dis-
19 orders, compulsive gambling, kleptomania, or pyromania. Sexual preference or
20 orientation is not considered an impairment or disability. Whether an impair-
21 ment substantially limits a major life activity shall be determined without
22 consideration of the effect of corrective or mitigating measures used to
23 reduce the effects of the impairment.
24 s. "Adaptive equipment" means any piece of equipment, product system, or
25 any item, whether acquired commercially off the shelf, modified, or custom-
26 ized, that is used to increase, maintain, or improve functional parenting
27 capabilities of a parent with a disability.
28 SECTION 9. That Section 16-2005, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 16-2005. CONDITIONS UNDER WHICH TERMINATION MAY BE GRANTED. The court may
31 grant an order terminating the relationship where it finds one (1) or more of
32 the following conditions exist:
33 a. The parent has abandoned the child by having willfully failed to main-
34 tain a normal parental relationship including, but not limited to, reasonable
35 support or regular personal contact; failure of the parent to maintain this
36 relationship without just cause for a period of one (1) year shall constitute
37 prima facie evidence of abandonment under this section. Provided further, that
38 where termination is sought by a grandparent seeking to adopt the child, will-
39 ful failure of the parent to maintain a normal parental relationship as pro-
40 vided herein, without just cause, for six (6) months shall constitute prima
41 facie evidence of abandonment.
42 b. The parent has neglected or abused the child. Neglect as used herein
43 shall mean a situation in which the child lacks parental care necessary for
44 his health, morals and well-being.
45 c. The presumptive parent is not the natural parent of the child.
46 d. The parent is unable to discharge parental responsibilities because of
47 mental illness or mental deficiency, and there are reasonable grounds to
48 believe the condition inability will continue for a prolonged indeterminate
49 period and will be injurious to the health, morals or well-being of the child.
50 e. If termination is found to be in the best interest of the parent and
51 child, where the petition has been filed by a parent or through an authorized
52 agency, or interested party.
53 f. Where a consent to termination in the manner and form prescribed by
14
1 this act has been filed by the parent(s) of the child in conjunction with a
2 petition for adoption initiated by the person or persons proposing to adopt
3 the child, or where the consent to termination has been filed by a licensed
4 adoption agency, no subsequent hearing on the merits of the petition shall be
5 held. Consents required by this act must be witnessed by a district judge or
6 magistrate of a district court, or equivalent judicial officer of the state,
7 where a person consenting resides or is present, whether within or without the
8 county, and shall be substantially in the following form:
9 IN THE DISTRICT COURT OF THE .... JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN
10 AND FOR THE COUNTY OF ....
11 In the Matter of the termination )
12 of the parental rights of )
13 ................... )
14 ................... )
15 I (we), the undersigned, being the .... of ...., do hereby give my (our)
16 full and free consent to the complete and absolute termination of my (our)
17 parental right(s), to the said ...., who was born ...., ...., unto ....,
18 hereby relinquishing completely and forever, all legal rights, privileges,
19 duties and obligations, including all rights of inheritance to and from the
20 said ...., and I (we) do hereby expressly waive my (our) right(s) to hearing
21 on the petition to terminate my (our) parental relationship with the said
22 ...., and respectfully request the petition be granted.
23 DATED: ...., 20...
24 ...................
25 STATE OF IDAHO )
26 ) ss.
27 COUNTY OF .... )
28 On this .... day of ...., 20.., before me, the undersigned ...., ....
29 (Judge or Magistrate) of the District Court of the .... Judicial District of
30 the state of Idaho, in and for the county of ...., personally appeared ....,
31 known to me (or proved to me on the oath of ....) to be the person(s) whose
32 name(s) is (are) subscribed to the within instrument, and acknowledged to me
33 that he (she, they) executed the same.
34 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
35 seal the day and year in this certificate first above written.
36 ...................... (District Judge or Magistrate)
37 The court shall accept a consent or a surrender and release executed in
38 another state if:
39 (1) It is witnessed by a magistrate or district judge of the state where
40 signed; or
41 (2) The court receives an affidavit or a certificate from a court of com-
42 parable jurisdiction stating that the consent or the surrender and release
43 was executed in accordance with the laws of the state in which it was exe-
44 cuted, or the court is satisfied by other showing that the consent or sur-
45 render and release was executed in accordance with the laws of the state
46 in which it was executed; or
47 (3) The court shall accept a termination or relinquishment from a sister
48 state that has been ordered by a court of competent jurisdiction under
49 like proceedings; or in any other manner authorized by the laws of a sis-
50 ter state. In a state where the father has failed to file notice of claim
51 to paternity and willingness to assume responsibility as provided for pur-
52 suant to the laws of such state, and where such failure constitutes an
53 abandonment of such child and constitutes a termination or relinquishment
54 of the rights of the putative father, the court shall accept such failure
55 as a termination in this state without further hearing on the merits, if
15
1 the court is satisfied that such failure constitutes a termination or
2 relinquishment of parental rights pursuant to the laws of that state.
3 g. Unless a consent to termination signed by the parent(s) of the child
4 has been filed by an adoption agency licensed in the state of Idaho, or unless
5 the consent to termination was filed in conjunction with a petition for adop-
6 tion of the child, the court shall hold a hearing.
7 h. The court may grant termination as to a parent:
8 (1) Who caused the child to be conceived as a result of rape, incest,
9 lewd conduct with a minor child under sixteen (16) years, or sexual abuse
10 of a child under the age of sixteen (16) years, as defined in section
11 16-2002 n., Idaho Code; or
12 (2) Who murdered or intentionally killed the other parent of the child;
13 or if the court determines the parent has been convicted of murder or vol-
14 untary manslaughter of another sibling of the child or has aided, abetted,
15 conspired or solicited to commit such murder or voluntary manslaughter
16 and/or if the court determines the parent has been convicted of a felony
17 assault or battery which resulted in serious bodily injury to the child or
18 a sibling; or
19 (3) Who has been incarcerated and has no possibility of parole; or
20 (4) If a court determines the child to be an abandoned infant.
21 There is a rebuttable presumption that termination of the parent-child rela-
22 tionship in any of the circumstances provided in subsection h. of this section
23 is in the best interest of the child.
24 SECTION 10. That Section 16-2007, Idaho Code, be, and the same is hereby
25 amended to read as follows:
26 16-2007. NOTICE -- WAIVER -- GUARDIAN AD LITEM. After a petition has been
27 filed, the court shall set the time and place for hearing, and shall cause
28 notice thereof to be given to the petitioner, the parents of the child if mar-
29 ried, the mother of the child if unmarried, those persons entitled to notice
30 pursuant to section 16-1513, Idaho Code, the guardian of the person of the
31 child, the person having legal custody of the child, any individual standing
32 in loco parentis to the child, and the guardian ad litem of any party, or if
33 service cannot be had on the parent or guardian, then upon the nearest blood
34 relative named in the petition. The division of welfare of the Idaho depart-
35 ment of health and welfare shall be given notice of the hearing if the peti-
36 tion for termination was not filed in conjunction with a petition for adoption
37 or by an adoption agency licensed by the state of Idaho. Notice shall be given
38 by personal service on the parents or guardian. Where reasonable efforts to
39 effect personal service have been unsuccessful, the court shall order service
40 by registered or certified mail to the last known address of the person to be
41 notified and by publication once a week for three (3) successive weeks in a
42 newspaper or newspapers to be designated by the court as most likely to give
43 notice to the person to be served. The hearing shall take place no sooner than
44 ten (10) days after service of notice, or where service is by registered or
45 certified mail and publication, the hearing shall take place no sooner than
46 ten (10) days after the date of last publication. Notice and appearance may be
47 waived by a parent in writing before the court or in the presence of, and wit-
48 nessed by, a clerk of court or a representative of an authorized agency, pro-
49 vided that such parent has been apprised by the court or by such person of the
50 meaning and consequences of the termination action. Where the parent resides
51 outside the state, the waiver shall be acknowledged before a notary of the
52 state and shall contain the current address of the parent. The parent who has
53 executed such a waiver shall not be required to appear. When the termination
16
1 of the parent and child relationship is sought under section 16-2005 d., Idaho
2 Code and the parent is determined to be incompetent to participate in the pro-
3 ceeding, the court shall appoint a guardian ad litem for the alleged incompe-
4 tent parent. The court may in any other case appoint a guardian ad litem, as
5 may be deemed necessary or desirable, for any party. Where the putative father
6 has failed to timely commence proceedings to establish paternity under section
7 7-1111, Idaho Code, and by filing with the vital statistics unit of the
8 department of health and welfare, notice of his commencement of proceedings to
9 establish his paternity of the child born out of wedlock, notice under this
10 section is not required unless such putative father is one of those persons
11 specifically set forth in section 16-1505(1), Idaho Code.
12 SECTION 11. That Section 16-2008, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 16-2008. INVESTIGATION PRIOR TO DISPOSITION. a. If a petition for adop-
15 tion is not filed in conjunction with a petition for termination, or the peti-
16 tion for termination was not filed by a children's adoption agency licensed by
17 the state of Idaho upon the filing of a petition for termination, the court
18 shall direct the department of health and welfare, bureau of child support
19 enforcement to submit a written financial analysis report within thirty (30)
20 days from date of notification, detailing the amount of any unreimbursed pub-
21 lic assistance moneys paid by the state of Idaho on behalf of the child. The
22 financial analysis shall include recommendations regarding repayment of
23 unreimbursed public assistance and provisions for future support for the
24 child, and the reasons therefor.
25 b. Upon the filing of a petition, the court may direct, in all cases
26 where written consent to termination has not been given as provided in this
27 act, that an investigation be made by the department of health and welfare,
28 division of family and children's services, or a licensed children's adoption
29 agency, and that a report in writing of such study be submitted to the court
30 prior to the hearing, except that where the department of health and welfare
31 or a licensed children's adoption agency is a petitioner, either in its own
32 right or on behalf of a parent, a report in writing of the investigation made
33 by such agency shall accompany the petition. The department of health and wel-
34 fare or the licensed children's adoption agency shall have thirty (30) days
35 from notification by the court during which it shall complete and submit its
36 investigation unless an extension of time is granted by the court upon appli-
37 cation by the agency. The court may order additional investigation as it deems
38 necessary. The social study shall include the circumstances of the petition,
39 the investigation, the present condition of the child and parents, proposed
40 plans for the child, and such other facts as may be pertinent to the parent
41 and child relationship, and the report submitted shall include a recommenda-
42 tion and the reasons therefor as to whether or not the parent and child rela-
43 tionship should be terminated. Evaluations shall be free of bias and shall
44 take into account the use of adaptive equipment and supportive services for
45 parents with disabilities, the availability of such supports and any obliga-
46 tion of any person or agency to provide such equipment or services. Where the
47 parent is a minor, if the report does not include a statement of contact with
48 the parents of said minor, the reasons therefor shall be set forth. The pur-
49 pose of the investigation is to aid the court in making disposition of the
50 petition and shall be considered by the court prior thereto.
51 c. No social study or investigation as provided for in paragraph b. of
52 this section shall be directed by the court with respect to the putative
53 father who has failed to timely commence proceedings to establish paternity
17
1 under section 7-1111, Idaho Code, and by filing with the vital statistics unit
2 of the department of health and welfare, notice of his commencement of pro-
3 ceedings to establish his paternity of the child, unless such putative father
4 is one of those persons specifically set forth in section 16-1505(1), Idaho
5 Code.
6 SECTION 12. That Section 32-717, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 32-717. CUSTODY OF CHILDREN -- BEST INTEREST. A. In an action for divorce
9 the court may, before and after judgment, give such direction for the custody,
10 care and education of the children of the marriage as may seem necessary or
11 proper in the best interests of the children. The court shall consider all
12 relevant factors which may include:
13 1. The wishes of the child's parent or parents as to his or her custody;
14 2. The wishes of the child as to his or her custodian;
15 3. The interaction and interrelationship of the child with his or her
16 parent or parents, and his or her siblings;
17 4. The child's adjustment to his or her home, school, and community;
18 5. The mental and physical health and integrity character and circum-
19 stances of all individuals involved;
20 6. The need to promote continuity and stability in the life of the child;
21 and
22 7. Domestic violence as defined in section 39-6303, Idaho Code, whether
23 or not in the presence of the child; and
24 8. If a parent has a disability as defined in section 16-1501(2)(b),
25 Idaho Code, the court shall consider the ability of such parent to care
26 for the child using adaptive equipment as defined in section
27 16-1501(2)(c), Idaho Code, and supportive services.
28 B. In any case where the child is actually residing with a grandparent in
29 a stable relationship, the court may recognize the grandparent as having the
30 same standing as a parent for evaluating what custody arrangements are in the
31 best interests of the child.
32 C. In any case where the disability of a parent is found by the court to
33 be relevant to an award of custody of a child, the court shall make specific
34 findings concerning the disability and what effect, if any, the court finds
35 the disability has on the best interests of the child.
36 SECTION 13. That Section 32-1005, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 32-1005. CUSTODY OF CHILDREN AFTER SEPARATION OF PARENTS. When a husband
39 and wife live in a state of separation, without being divorced, any court of
40 competent jurisdiction, upon application of either, if an inhabitant of this
41 state, may inquire into the custody of any unmarried minor child of the mar-
42 riage, and may award the custody of such child to either, for such time and
43 under such regulations as the case may require. The decision of the court must
44 be guided by the welfare of the child, and be free of bias on the basis of
45 race, religion, gender, national origin, age or disability. Evaluations of
46 parent fitness shall be free of bias and shall take into account the use of
47 adaptive equipment and supportive services for parents with disabilities, the
48 availability of such equipment or services, and any obligation of any person
49 or agency to provide such equipment or services. Such evaluations shall be
50 conducted by, or with the assistance of, a person who has expertise concerning
51 such equipment and services. For purposes of this section, disability and
18
1 adaptive equipment shall be as defined in section 16-1501(2)(b) and (c), Idaho
2 Code.
STATEMENT OF PURPOSE
RS 10718C1
Families in which one or both parents have a disability face
significant barriers as they attempt to raise their children. These barriers
include: 1) attitudinal barriers, 2) lack of information about parenting
adaptations, 3) lack of funding for adaptive technology, 4) exclusion from
public policy considerations, and 5) lack of disability expertise in service
systems.
Idaho child custody laws, as currently written, reflect the historical
bias against parents with disabilities and present an unrealistic view of the
disability community by their constant referral to having a disability as a
factor in a parent s ability to raise their children. Such references imply
that parents with disabilities are incapable of properly caring for their
children. It is not a person s disability that inhibits a person s capacity to
provide a stable and loving home for children, rather it is a lack of
disability related supports for a parent with a disability that results in an
unstable home environment.
Many parents with significant disabilities provide excellent care and
stable homes for their children with the assistance of family, friends and
neighbors. Factors that should be considered in child custody cases include
abuse, neglect, abandonment, etc., regardless of whether the parent has a
disability.
This legislation: 1) removes from current law any inappropriate
disability language, 2) builds into current law protections against
discriminatory actions because of a parent s disability in child custody legal
proceedings and, 3) creates an evaluation system that is consistent and takes
into consideration the use of adaptive equipment and supportive services.
Based on information provided by Through the Looking Glass, a National
Resource Center for Parents with Disabilities, there are over 8.1 million U.S.
families, or 10.9 percent, of families with children, in which one or both
parents have a disability. Based on these figures, the proposed legislation
will have a positive impact on an estimated 14,750 Idaho families.
FISCAL IMPACT
This legislation does not obligate any state, county or city agencies
to provide any services to parents with disabilities. It only requires that
they conduct child custody matters in a non-discriminatory manner. Therefore,
the fiscal impact is $0.
Contact: Senator Robbi King-Barrutia
Statement of Purpose / Fiscal Impact S 107