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What if I can't find the other party -  Service by Publication

9/25/2012

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Q: Can I get a custody Order when the father is out of state and I don't know his address?

A: Yes, you can publish the summons in the newspaper, if you cannot find the other party to a lawsuit . You have to mail the complaint and summons to the defendant's last known address (IRCP 4(e)(1)), do a diligent search for the defendant (such as call family members), certify under oath that you have done a diligent search for the defendant, and request permission from the court before proceeding. Typically judges would require that you publish where you think the defendant is such as when he tells you that he lives in Arizona but will not give you the exact address and the last known address is in Idaho.

This process is procedurally technical and you should consult an attorney immediately. If you make one mistake you may have to repeat the process and may result in a dismissal of your case. 

"5-508. Service by publication -- Affidavit. When the person on whom the service is to be made resides outside of the state, or has departed from the state, or cannot after due diligence be found within the state, or conceals himself therein to avoid the service of summons, or is a foreign corporation having no managing or business agent, cashier or secretary within this state, or where any persons are made defendant by the style and description of unknown owners, or unknown heirs or unknown devisees of any deceased person and the names of such unknown owners or heirs or devisees are unknown to the complainant in the action, and such facts appear by affidavit to the satisfaction of the court in which the suit is pending, and it also appears by the affidavit or a verified complaint on file that a cause of action exists against the defendant in respect to whom the service is to be made, and that he is a necessary or proper party to the action, the court may make an order for the publication of the summons; and an affidavit setting forth in ordinary and concise language any of the grounds as above set forth, upon which the publication of the summons is sought, shall be sufficient without setting forth or showing what efforts have been made or what diligence has been exerted in attempting to find the defendant. Service upon any person, firm, company, association or corporation who is subject to the jurisdiction of the courts of this state pursuant to the provisions of section 5-514, Idaho Code, may be made in the manner provided in section 5-515, Idaho Code."
http://legislature.idaho.gov/idstat/Title5/T5CH5SECT5-508.htm 

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Grandparent's Custody Rights in Idaho

9/13/2012

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A grandparent under certain circumstances can apply to the court for custody of the grandchildren. The grandparents do not need to apply for guardianship or have the natural parents sign a parental power of attorney form. There are other methods for Grandparents to have legal status with their grandchildren such as Guardianship, De Facto Custodianship or a Parental Power of Attorney. Each method has different requirements and advantages versus disadvantages. You can read an informational packet created through a AARP grant here. Please be aware that Grandparent's rights changes dramatically and quickly, please check with legal counsel.

Idaho Code Sec 32-717 (3)
"In any case where the child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interests of the child."
 http://www.legislature.idaho.gov/idstat/Title32/T32CH7SECT32-717.htm
 
See Also Hernandez v. Hernandez, 265 P.3d 495 (Idaho 2011)
and Troxel v. Granville, 530 U.S. 57 (2000) (A parent has a fundamental right under the Due Process Clause of the Fourteenth Amendment "to make decisions concerning the care, custody and control of their children.")



Guardianship
http://www.legislature.idaho.gov/idstat/Title15/T15CH5PT2.htm

Parental Power of Attorney
http://www.legislature.idaho.gov/idstat/Title15/T15CH5SECT15-5-104.htm 

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First Post

9/13/2012

3 Comments

 
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The purpose of this blog is post issues of legal research or of interest to the family law attorneys, counselors, or the public. All statements and are intended to be legal information and not legal advice and are not intended to be followed by anyone without the assistance of counsel. Please contact my office before acting as you may forfeit your rights contact me here. 

I am hoping that this information will give some direction to people who are dealing with family law in Idaho. In all of the posts the real ADVICE is to see an attorney immediately. 

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    Call 208.788.9232

    Selim Star

    Selim Star is an attorney in Ketchum, Hailey, Sun Valley Idaho area he can be found on google+ and LinkedIn. .219 South River Street, Unit 202
    Hailey, Idaho 83333 
    208.788.9232   
    208.788.9376 (FAX)  
    EMAIL Star Law Office 

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    PLEASE HIRE LEGAL COUNSEL: Limitations, conditions, and disclaimers: the information contained herein is general information only and that no client-lawyer relationship is created through the posting of this information, your information will NOT be kept confidential as it was posted for all people to see. Additionally no legal advice is being given, as  all factual situations are different and only through the careful review of your factual circumstances with an attorney can the correct course of action be determined. 


    PLEASE CHECK IF LAW IS CURRENT: The law changes quickly please do your research and contact an attorney to ensure that you have the current law. The law as printed here may have changed since posting and the links may have changed. 

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