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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 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
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