TITLE 32

DOMESTIC RELATIONS

CHAPTER 17

DE FACTO CUSTODIAN ACT

32-1704.  commencement of proceedings. (1) A child custody proceeding may be initiated in any court of this state with jurisdiction to determine child custody matters, by an individual:

(a)  Filing a petition seeking a determination that he or she is a de facto custodian pursuant to section 32-1703, Idaho Code, and seeking custody of a child; or

(b)  Filing a motion seeking permissive intervention pursuant to rule 24 of the Idaho rules of civil procedure, in a pending custody proceeding seeking a determination that he or she is a de facto custodian pursuant to section 32-1703, Idaho Code, and seeking custody of a child.

(2)  A petition for custody or a motion to intervene based on the petitioners or intervenors alleged status as a de facto custodian, filed under this section, must state and allege:

(a)  The name and address of the petitioner or intervenor and any prior or other name used by the petitioner or intervenor;

(b)  The name of the respondent mother and father or guardian(s) and any prior or other name used by the respondent(s) and known to the petitioner or intervenor;

(c)  The name and date of birth of each child for whom custody is sought;

(d)  The relationship of the petitioner or intervenor to each child for whom custody is sought;

(e)  The basis for jurisdiction asserted by the petitioner or intervenor;

(f)  The current legal and physical custodial status of each child for whom custody is sought, whether a proceeding involving custody of the child, including a proceeding for an order or protection pursuant to section 39-6304, Idaho Code, is pending in a court in this state or elsewhere, and a list of all prior orders of custody, including temporary orders, if known to the petitioner or intervenor;

(g)  Whether either parent is a member of the armed services, if known to the petitioner or intervenor;

(h)  The length of time each child has resided with the petitioner or intervenor and the nature of the petitioners or intervenors role in caring for each child for whom custody is sought;

(i)  The financial support provided by the petitioner or intervenor for each child for whom custody is sought;

(j)  Whether physical and/or legal custody should be granted to and/or shared with the respondent(s); and

(k)  The basis upon which the petitioner or intervenor is claiming that it is in the best interests of the child that the petitioner or intervenor have custody of the child.

(3)  The petition or motion must be verified by the petitioner or intervenor.

(4)  Written notice of a hearing on a petition or motion to intervene for custody of a child by a de facto custodian must be given to:

(a)  The parent(s) of the child as defined in section 16-2002(11) and (12), Idaho Code; and

(b)  The guardian or legal custodian, if any, of the child; and

(c)  The child’s tribe pursuant to federal law, if the child is an Indian child as defined in the Indian child welfare act, 25 U.S.C. 1901, et seq.

(5)  Written notice of a hearing on a petition for custody of a child by a de facto custodian must be given to the Idaho department of health and welfare if the petitioner has reason to believe that either parent receives public assistance, the petitioner receives public assistance on behalf of the child or either parent receives child support enforcement services from the Idaho department of health and welfare or applies for such public assistance or child support enforcement services after a petition under this section is filed. Notice to the Idaho department of health and welfare must include a copy of the petition.

(6)  In an action for custody of a child by a de facto custodian, the parties must stipulate to, or the court must find, facts establishing by clear and convincing evidence that the petitioner or intervenor is a de facto custodian pursuant to the requirements of section 32-1703, Idaho Code, before the court considers whether custody with the de facto custodian is in the best interests of the child.

(7)  Once a court has found facts supporting the qualification of the petitioner or intervenor as the de facto custodian of a child, the petitioner or intervenor must prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the de facto custodian. In determining the best interests of the child, the court shall apply the standards as provided in section 32-717(1), Idaho Code.

(8)  In determining whether the petitioner or intervenor has established that it is in the best interests of the child to be in the custody of the de facto custodian, the court may also consider:

(a)  The circumstances under which the child was allowed to remain in the care of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent to seek work or to attend school;

(b)  Whether the child is currently residing with the de facto custodian and, if not, the length of time since the petitioner or intervenor last functioned as the child’s de facto custodian.

History:

[32-1704, added 2010, ch. 236, sec. 1, p. 609.]