2004 Legislation
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SENATE BILL NO. 1302 – Minors, de facto custodians

SENATE BILL NO. 1302

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Bill Status



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

Bill Text


                                                                        
                                                                        
  ]]]]              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 / Fiscal Impact


                       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