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S1053................................................by JUDICIARY AND RULES MINORS - Amends existing law relating to guardianships to revise provisions applicable to a court appointment of an attorney or guardian ad litem to represent a minor; and to revise provisions applicable to de facto custodians. 01/24 Senate intro - 1st rdg - to printing 01/25 Rpt prt - to Jud 02/10 Rpt out - rec d/p - to 2nd rdg 02/11 2nd rdg - to 3rd rdg 02/14 3rd rdg - PASSED - 34-0-1 AYES -- Brandt, Broadsword, Bunderson, Burkett, Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Noble, Pearce, Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams NAYS -- None Absent and excused -- Andreason Floor Sponsor - Lodge Title apvd - to House 02/15 House intro - 1st rdg - to Jud 03/10 Rpt out - rec d/p - to 2nd rdg 03/11 2nd rdg - to 3rd rdg 03/15 3rd rdg - PASSED - 69-0-1 AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Hart(Jacobson), Harwood, Henbest, Henderson, Jaquet, Jones, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sali, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker NAYS -- None Absent and excused -- Crow Floor Sponsor - McGeachin Title apvd - to Senate 03/16 To enrol 03/17 Rpt enrol - Pres signed 03/18 Sp signed 03/21 To Governor 03/23 Governor signed Session Law Chapter 113 Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005 IN THE SENATE SENATE BILL NO. 1053 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO GUARDIANSHIPS; AMENDING SECTION 15-5-207, IDAHO CODE, TO REVISE 3 PROVISIONS APPLICABLE TO A COURT APPOINTMENT OF AN ATTORNEY OR GUARDIAN AD 4 LITEM TO REPRESENT A MINOR; AND AMENDING SECTION 15-5-213, IDAHO CODE, TO 5 REVISE PROVISIONS APPLICABLE TO DE FACTO CUSTODIANS. 6 Be It Enacted by the Legislature of the State of Idaho: 7 SECTION 1. That Section 15-5-207, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 15-5-207. COURT APPOINTMENT OF GUARDIAN OF MINOR -- PROCEDURE. Proceed- 10 ings for the appointment of a guardian may be initiated by any relative of the 11 minor, the minor if he is fourteen (14) years of age, a de facto custodian of 12 the minor, or any person interested in the welfare of the minor. 13 (a) Notice of the time and place of hearing of a petition for the 14 appointment of a guardian of a minor is to be given by the petitioner in the 15 manner prescribed by section 15-1-401 of this code to: 16 (1) The minor, if he is fourteen (14) or more years of age; 17 (2) The person who has had the principal care and custody of the minor 18 during the sixty (60) days preceding the date of the petition; 19 (3) The de facto custodian of the minor, if any; and 20 (4) Any living parent of the minor. 21 (b) Upon hearing, if the court finds that a qualified person seeks 22 appointment, venue is proper, the required notices have been given, the 23 requirements of section 15-5-204 of this part have been met, and the welfare 24 and best interests of the minor will be served by the requested appointment, 25 it shall make the appointment. In other cases the court may dismiss the pro- 26 ceedings, or make any other disposition of the matter that will best serve the 27 interest of the minor. 28 (c) If necessary, the court may appoint a temporary guardian, with the 29 status of an ordinary guardian of a minor, but the authority of a temporary 30 guardian shall not last longer than six (6) months. 31 (d) Upon the filing of a petition, tThe court shall appoint an attorney 32 to represent the minor , who shall have the powers and duties of a guardian ad33 litemif the court determines that the minor possesses sufficient maturity to 34 direct the attorney. If the court finds that the minor is not mature enough to 35 direct an attorney, the court shall appoint a guardian ad litem for the minor. 36 The court may decline to appoint an attorney or guardian ad litem if it finds 37 in writing that such appointment is not necessary to serve the best interests 38 of the minor or if the Idaho department of health and welfare has legal cus- 39 tody of the child. 40 (e) Letters of guardianship must indicate whether the guardian was 41 appointed by will or by court order. 42 SECTION 2. That Section 15-5-213, Idaho Code, be, and the same is hereby 2 1 amended to read as follows: 2 15-5-213. DE FACTO CUSTODIAN. (1) "De facto custodian" means a person who 3 has been the primary caregiver for, and primary financial supporter of, a 4 child who, prior to the filing of a petition for guardianship, has resided 5 with the person for a period of six (6) months or more if the child is under 6 three (3) years of age and for a period of one (1) year or more if the child 7 is three (3) years of age or older. 8 (2) If a court determines by clear and convincing evidence that a person 9 meets the definition of a de facto custodian, and that recognition of the de 10 facto custodian is in the best interests of the child, the court shall give 11 the person the same standing that is given to each parent under this actin 12 proceedings for appointment of a guardian of a minor. In determining whether 13 recognition of a de facto custodian is in the child's best interests, the 14 court shall consider: 15 (a) Whether the child is currently residing with the person seeking rec- 16 ognition as a de facto custodian; and 17 (b) If the child is not currently residing with the person seeking de 18 facto custodian status, the length of time since the person served as the 19 child's primary caregiver and primary financial supporter.
STATEMENT OF PURPOSE RS 14656 The concept of a "de facto custodian" was adopted last year by this Legislature, limited, however, to the area of minor guardianship. It was the intent of this limited adoption that: (1) review would be made of how the concept worked in that limited area; and, (2) as, and if, appropriate, the concept would then be introduced into other areas of the Idaho Code. This bill represents the first step, by modifying the provisions of the existing act to clarify the provisions of the existing act to clarify areas that have raised discussion. Section One: These provisions modify the appointment procedures for an attorney for the minor child. If the child is of sufficient maturity to direct the actions of the attorney, one is to be appointed. If the child is not sufficiently mature, then a guardian ad litem is appointed for the child. In two situations, no attorney or guardian ad litem is appointed: (1) if the court determines that an appointment is not necessary for the best interests of the child; or, (2) if the child is already in the custody of the Department of Health & Welfare. Section Two: A series of clarifications: (1) the requirements for the status of de facto custodian must be met by the date the petition is filed; (2) the evidentiary test for meeting the status of de facto custodian is "clear and convincing"; (3) the court must also determine that having the person have the status of de facto custodian is in the best interests of the minor child; (4) the de facto custodian provisions apply only to proceedings for guardianship of a minor; and, (5) in determining whether the status of de facto custodian is in the best interests of the minor child, the court is to consider whether the child is currently living with the de facto custodian, or if not, how long since the de facto custodian has been the primary caregiver and primary financial support of the child. FISCAL NOTE This bill will have no fiscal impact. CONTACT: Name: Robert L. Aldridge Telephone: office: (208) 336-9880 Cell: 631-2481 STATEMENT OF PURPOSE/FISCAL NOTE S 1053