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S1302................................................by JUDICIARY AND RULES
MINORS - DE FACTO CUSTODIANS - Adds to and amends existing law to revise
procedures relating to court appointment of guardians of minors; to require
the court to appoint an attorney for a minor upon the filing of a petition
for the appointment of a guardian of the minor; to provide powers and
duties of the attorney; and to provide for de facto custodians.
02/12 Senate intro - 1st rdg - to printing
02/13 Rpt prt - to Jud
02/23 Rpt out - rec d/p - to 2nd rdg
02/24 2nd rdg - to 3rd rdg
02/27 3rd rdg - PASSED - 32-0-3
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde, Ingram,
Kennedy, Keough, Little, Lodge, Malepeai, Marley, McKenzie,
McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
Stegner, Stennett, Sweet, Werk
NAYS -- None
Absent and excused -- Calabretta, Hill, Williams
Floor Sponsor - Bunderson
Title apvd - to House
03/01 House intro - 1st rdg - to Jud
03/08 Rpt out - rec d/p - to 2nd rdg
03/09 2nd rdg - to 3rd rdg
03/10 3rd rdg
03/11 PASSED - 60-8-2
AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
Black, Block, Bolz, Bradford, Campbell, Cannon, Collins, Crow, Cuddy,
Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Garrett, Harwood, Jaquet, Kellogg, Kulczyk,
Langford, Langhorst, Martinez, McGeachin, McKague, Meyer, Miller,
Moyle, Naccarato, Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring,
Ringo, Roberts, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley,
Skippen, Smith(30), Snodgrass, Stevenson, Trail, Wills, Wood, Mr.
Speaker
NAYS -- Boe, Clark, Gagner, Henbest, Jones, Lake, Mitchell, Smith(24)
Absent and excused -- Robison, Smylie
Floor Sponsors - Sayler & Sali
Title apvd - to Senate
03/12 To enrol
03/15 Rpt enrol - Pres signed
03/16 Sp signed
03/17 To Governor
03/23 Governor signed
Session Law Chapter 145
Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE SENATE
SENATE BILL NO. 1302
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO GUARDIANS OF MINORS; AMENDING SECTION 15-5-207, IDAHO CODE, TO
3 REVISE PROCEDURES RELATING TO COURT APPOINTMENT OF GUARDIANS OF MINORS TO
4 PROVIDE FOR DE FACTO CUSTODIANS, TO REQUIRE THE COURT TO APPOINT AN ATTOR-
5 NEY FOR A MINOR UPON THE FILING OF A PETITION FOR THE APPOINTMENT OF A
6 GUARDIAN OF THE MINOR, TO PROVIDE FOR THE POWERS AND DUTIES OF THE ATTOR-
7 NEY AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING PART 2, CHAPTER 5,
8 TITLE 15, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 15-5-213, IDAHO
9 CODE, TO PROVIDE FOR DE FACTO CUSTODIANS.
10 Be It Enacted by the Legislature of the State of Idaho:
11 SECTION 1. That Section 15-5-207, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 15-5-207. COURT APPOINTMENT OF GUARDIAN OF MINOR -- PROCEDURE. Proceed-
14 ings for the appointment of a guardian may be initiated by any relative of the
15 minor, the minor if he is fourteen (14) years of age, a de facto custodian of
16 the minor, or any person interested in the welfare of the minor.
17 (a) Notice of the time and place of hearing of a petition for the
18 appointment of a guardian of a minor is to be given by the petitioner in the
19 manner prescribed by section 15-1-401 of this code to:
20 (1) Tthe minor, if he is fourteen (14) or more years of age;
21 (2) Tthe person who has had the principal care and custody of the minor
22 during the sixty (60) days preceding the date of the petition; and
23 (3) The de facto custodian of the minor, if any; and
24 (4) Aany living parent of the minor.
25 (b) Upon hearing, if the court finds that a qualified person seeks
26 appointment, venue is proper, the required notices have been given, the
27 requirements of section 15-5-204 of this Ppart have been met, and the welfare
28 and best interests of the minor will be served by the requested appointment,
29 it shall make the appointment. In other cases the court may dismiss the pro-
30 ceedings, or make any other disposition of the matter that will best serve the
31 interest of the minor.
32 (c) If necessary, the court may appoint a temporary guardian, with the
33 status of an ordinary guardian of a minor, but the authority of a temporary
34 guardian shall not last longer than six (6) months.
35 (d) If, at any time in the proceeding, the court determines that the
36 interests of the minor are or may be inadequately represented, it may Upon the
37 filing of a petition, the court shall appoint an attorney to represent the
38 minor, giving consideration to the preference of the minor if the minor is
39 fourteen (14) years of age or older who shall have the powers and duties of a
40 guardian ad litem.
41 (e) Letters of guardianship must indicate whether the guardian was
42 appointed by will or by court order.
2
1 SECTION 2. That Part 2, Chapter 5, Title 15, Idaho Code, be, and the same
2 is hereby amended by the addition thereto of a NEW SECTION, to be known and
3 designated as Section 15-5-213, Idaho Code, and to read as follows:
4 15-5-213. DE FACTO CUSTODIAN. (1) "De facto custodian" means a person who
5 has been the primary caregiver for, and financial supporter of, a child who
6 has resided with the person for a period of six (6) months or more if the
7 child is under three (3) years of age and for a period of one (1) year or more
8 if the child is three (3) years of age or older.
9 (2) If a person meets the definition of a de facto custodian, the court
10 shall give the person the same standing that is given to each parent under
11 this act.
STATEMENT OF PURPOSE
RS 13805
Minor children are now being raised in an increasing number of cases by
grandparents and other relatives. Idaho has over 17,000 reported
households containing one or more minor children but headed by a
grandparent of the child. This is a national trend; New York, for
example, has nearly 150,000 such households. These people raising minors
who are not their own children are commonly referred to as "de facto
custodians". Idaho law has not given de facto custodians any particular
status in the determination of the best interests of the minor when
considering custody, visitation, termination proceedings, child
protection, and so forth. This bill starts the correction to that
situation by first defining the term de facto custodian, and then
providing for the status of a de facto custodian in guardianship
proceedings involving minors.
Definition: "De facto custodian" means a person who has been the primary
caregiver for, and financial supporter of, a child who has resided with
the person for a period of six (6) months or more if the child is under
three (3) years of age and for a period of one (1) year or more if the
child is three (3) years of age or older.
Section One of the bill provides that a de facto custodian can initiate
a guardianship proceeding, and is entitled to notice of any such
proceeding. The Section also provides for appointment of a guardian ad
litem for a minor in a guardianship proceeding. Despite the current
language of the statute allowing a discretionary appointment of a
guardian ad litem in such cases, such a guardian is almost never
appointed. A guardian ad litem is an important protection for
guardianship, especially of a minor. Section Two sets forth the
definition of de facto custodian.
The language used in this bill has been in place in the State of Kentucky
for several years. It has survived all court challenges and has been
held constitutional, including under the most recent United States
Supreme Court decisions such as Troxell. It also has not added any
fiscal impacts to the State budgets of Kentucky. This bill will give
courts the ability to make reasoned decisions regarding minors that are
in the best interests of the minor whenever there has been a de facto
custodian who has had a substantial, long-term, ongoing relationship with
the minor.
FISCAL NOTE
This bill will have no fiscal impact. The bill may reduce the number of
foster care placements, which would have a large positive fiscal impact
to the state.
CONTACT:
Name: Robert L. Aldridge
Phone: (208) 336-9880
STATEMENT OF PURPOSE/FISCAL NOTE S 1302