2005 Legislation
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SENATE BILL NO. 1053 – Minor, representatn, court appoint

SENATE BILL NO. 1053

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Bill Status



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

Bill Text


                                                                        
                                                                        
  ]]]]              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  ad
 33    litem  if 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  act  in
 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 / Fiscal Impact


                      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