A guardianship is generally seen as giving the guardian all aspects of custody to a Guardian. That being said there are many times when the Guardian wants the natural parents to have some visitation or a natural parent may already be in a position where they are sharing custody with a guardian and may have a dispute regarding the exact nature of parenting time, child support, or of the guardianship.

The written statutes do not give us clear guidance as to how to modify, create or terminate a guardianship, but the courts have been asked to determine how to reconcile the competing interests of guardians and other people desiring custody or parenting time.

This is extremely confusing and difficult area of family law and you should consult an attorney that has had some experience in this particular area.  

A recent Idaho Supreme Court case gave us a little guidance on how to analyze such a request, in Doe v. Doe, 150 Idaho 432 (Idaho 2011) the Court stated: 

" [a]ny person interested in the welfare of a ward, or the ward, if fourteen (14) or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interest of the ward " Doe at p. 436. (Quoting Idaho Code § 15-5-212(a).)

and also

In determining the best interest of the children, the magistrate court could and should consider that it is usually in the best interest of the children to be in the custody of the natural parent(s). That factor can and should be considered in reaching the ultimate conclusion of whether termination of the guardianship is in the best interest of the child. Id.

​By Selim Star

Custody can be awarded to a non-parent, someone who is not the adopted parent nor the natural parent, in certain circumstances. 

In this manner you can be awarded custody of a child that is not your biological child but may be a child of your ex-girlfriend, ex-boyfriend, ex-wife or ex-husband. Even in a situation where someone dropped a child off at your house, you may apply for custody with the court. Or you may be the grandparents of the minor child.

In some circumstances a guardianship or a termination of parental rights action combined with an adoption may be more appropriate. 

Please consult an attorney if you are in this situation as it is extremely difficult and confusing area of the law. 

The Idaho Supreme Court in Stockwell v. Stockwell, 116 Idaho 297, 299 (1989) allowed a nonparent visitation rights and stated: 

The paramount consideration in any dispute involving  the custody and care of a minor child is the child's best interests. I.C. Sec 32-717. In custody disputes between a "non'Parent" (i.e., an individual who is neither legal nor natural parent) and a natural parent, Idaho courts apply a presumption that a natural parent should have custody as opposed to other lineal or collateral relatives or interested parties. This presumption operates to preclude consideration of the best interests of the child unless the nonparent demonstrates either that the natural parent has abandoned the child, that the natural parent is unfit of that the child has been in the nonparent's custody for an appreciable time. 

But see Troxell v. Granville, 530 US 57 (2000) (Which held that the constitution's due process clause allowed natural parents a fundamental right to make decisions regarding their children, that parents decisions should have 'special weight', and that 'special factors' might justify a State trumping a parent's decision)

See also Hernandez v. Hernandez, 151 Idaho 882 (2011) (Which did not overrule Stockwell, but was post Troxel)

Some Judges in the Fifth District are sending out an order which explains the Mandatory Disclosures in Idaho Rules of Family Law Procedure (IRFLP) 401. 

I have included a copy of that Order below and it is interesting as it explains better when you need to provide information about debts and assets, as this order indicates that you need not do so when only custody and child support are in controversy. 

If you are thinking "What information do I need to gather to file a custody action or a divorce action?" The Mandatory Disclosures is a good place to start. 

The Order which addresses IRFLP 401 was attached to the Order to Attend Scheduling Conference (which Blaine County sends out automatically when an answer is filed) is as follows: 


ADDENDUM TO SCHEDULING CONFERENCE ORDER

Pursuant to IRFLP 401 and good cause appearing;

IT IS HEREBY ORDERED that within thirty-five (35) days of the date of this Order, the parties shall disclose under oath, to every other party, the following information:

1.         In a case in which child support is an issue, each party (with the exception of the Idaho Department of Health and Welfare) shall disclose the following information to the other party:

a.         A fully completed Affidavit Verifying Income on a form substantially in compliance with Rule 126.1 and Appendix A and a Child Support Worksheet substantially in compliance with Rule 126.1 and Appendix B or C;

b.         Proof of income of the party from all sources, specifically including W-2 forms, 1099 forms, and K-I forms, for the prior two (2) completed calendar years, and year-to-date income information for the current calendar year. including, but not limited to, year-to-date pay stub, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance;

c.         Proof of the amount of court-ordered child support and spousal maintenance actually paid by the party in any case other than the one in which disclosure is being provided;

d.         Proof of the cost of all medical, dental, and vision insurance premiums paid by the party for any child listed or referenced in the petition;

e.         Proof of the cost of any child care expenses paid by the party for any child listed or referenced in the petition;

f.          Proof of any expenses paid by the party for private or special schools or other particular education needs of a child listed or referenced in the petition; and

g          Proof of any expenses paid by the party for the special needs of a gifted or handicapped child listed or referenced in the petition.

2.         When Health and Welfare is a party to a case in which child support and/or other financial matters regarding the child(ren) are at issue, IDHW shall disclose all financial information at its disposal after redacting social security numbers to the other parties who have made an appearance in the case.
[sic]
4.         If either party has requested an award of spousal maintenance or an award of attorneys' fees and costs, each party shall disclose the following information to the other:

a.         A fully completed affidavit containing the information required by Rule 504.A.2; and

b.         Those documents set forth in subdivision A.2 above.

5.         Unless the parties have entered into a written agreement disposing of all property issues in the case or no property is at issue in the case, each party shall prepare a list of all items having a fair market value more than $100 of real and personal property, including, but not limited to, household furniture, furnishings, antiques, artwork, vehicles, jewelry and similar items in which any party has an interest, together with the party's estimate of current fair market value (not replacement value) for each item. In addition, each party shall provide to the other party the following documents:

a.         Copies of all deeds, deeds of trust, purchase agreements, escrow documents, settlement sheets, and all other documents that disclose the ownership, legal description, purchase price and encumbrances of all real property owned by any party;

b.         Copies of all monthly or periodic bank, checking, savings, brokerage and security account statements in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure;

c.         Copies of all monthly or periodic statements and documents showing the value of all pension, retirement, stock option, and annuity balances, including Individual Retirement Accounts, 401(k) accounts, and all other retirement and employee benefits and accounts in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information;

d.         Copies of all monthly or periodic statements and documents showing the cash surrender value, face value, and premiums charged for all life insurance policies in which any party has an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;

e.         Copies of all documents that may assist in identifying or valuing any item of real or personal property in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition, including any documents that the party may rely upon in placing a value on any item of real or personal property;

f.          Copies of all business tax returns, balance sheets, profit and loss statements, and

all documents that may assist in identifying or valuing any business or business interest for the last two (2) completed calendar or fiscal years and through the latest available date prior to disclosure with respect to any business or entity in which any party has an interest or had an interest for the period commencing twenty-four (24) months prior to the filing of the petition; and

g.         Copies of any bankruptcy filings of the parties, or either of them. If a party does not possess a copy of any of the above documents, they shall provide the name, address and telephone number of the custodian of the documents.

            6.         Unless the parties have entered into a written agreement disposing of all debt issues in the case or no debts are at issue in the case, each party shall prepare a list of a list of all debts identifying the creditors and the amounts owed. In addition, each party shall provide to the other party the following documents:

a.         Copies of all monthly or periodic statements and documents showing the balances owing on all mortgages, notes, liens, and encumbrances outstanding against all real property and personal property in which the party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information; and

b.         Copies of credit card statements and debt statements for all months for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure.

7.         Forty-two (42) days before trial each party shall disclose the names, addresses, and telephone numbers of any witness whom the disclosing party expects to call at trial, along with a statement fairly describing the substance of each witness's expected testimony. A party shall not be allowed to call witnesses who have not been disclosed at least forty-two (42) days before trial, or such different period as may be ordered by the court.

8.         Forty-two (42) days before trial each party shall disclose the name, address and telephone number of any person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness, and the name and address of the custodian of copies of any reports prepared by the expert. A party shall not be allowed to call an expert witness who has not been disclosed at least forty-two (42) days before trial or such different period as may be ordered by the court.

IT IS FURTHER ORDERED that:

1.         The duty described in this Order shall be a continuing duty, and each party shall make additional or amended disclosures before a motion hearing or trial in the event new or different information is discovered or revealed.
         
2.         The disclosures shall not be filed with the Court. The party receiving disclosures shall retain the original of the disclosures with the original proof of service affixed thereto until one (1) year after final disposition of the action. At that time, the originals may be destroyed unless the court, on motion of any party and for good cause shown, orders that the originals be preserved for a longer period.

3.         The party serving disclosures shall file with the court a notice of when the disclosures were served and upon whom.

4.         Nothing in this Order shall preclude relevant additional discovery by a party in a family law case, in which case further discovery may proceed as set forth in these rules of family law procedure. If a party believes more detailed disclosure is necessary other than that set forth herein, that party may obtain discovery by one or more of the following methods: written [sic]."

A Mandatory Disclosure form must be filed in any divorce or custody or child support action filed in Blaine County, Camas County, Cassia County, Gooding County, Jerome County, Lincoln County, Minidoka County or Twin Falls County. 

The Fifth Judicial District of Idaho (Blaine County, Camas County, Cassia County, Gooding County, Jerome County, Lincoln County, Minidoka County or Twin Falls County) adopted the Idaho Rules of Family Law Procedure (IRFLP) as of July 1, 2014, which means all cases filed after July 1, 2014 must follow the new family law rules. Cases filed before July 1, 2014 still follow the Idaho Rules of Civil Procedure. The order adopting the new family rules can be viewed here. Mandatory Disclosures is 

Whether you have an attorney or not you must answer all of the questions required by the mandatory disclosures and collect all of the required documents. 

You can find the Rule here. Idaho Rules of Family Law Procedure 401. The entire rule is quoted below. 


Idaho Rules of Family Law Procedure Rule 401. Mandatory Disclosure in Contested Proceedings.

The requirements of this rule are minimum disclosure requirements for every family law case. Unless otherwise provided for in this rule or agreed to in writing by the parties or ordered by the court, within thirty-five (35) days after the filing of a responsive pleading, each party shall disclose in writing, signed under oath, to every other party the information set forth in this rule.

A. Child Support. In a case in which child support is an issue, each party (with the exception of the Idaho Department of Health and Welfare) shall disclose the following information to the other party:

1. a fully completed Affidavit Verifying Income on a form substantially in compliance withRule 126.I and Appendix A and a Child Support Worksheet substantially in compliance with Rule 126.I and Appendix B or C;

2. proof of income of the party from all sources, specifically including W-2 forms, 1099 forms, and K-1 forms, for the prior two (2) completed calendar years, and year-to-date income information for the current calendar year, including, but not limited to, year-to-date pay stub, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker's compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance;

3. proof of the amount of court-ordered child support and spousal maintenance actually paid by the party in any case other than the one in which disclosure is being provided;

4. proof of the cost of all medical, dental, and vision insurance premiums paid by the party for any child listed or referenced in the petition;

5. proof of the cost of any child care expenses paid by the party for any child listed or referenced in the petition;

6. proof of any expenses paid by the party for private or special schools or other particular education needs of a child listed or referenced in the petition; and

7. proof of any expenses paid by the party for the special needs of a gifted or handicapped child listed or referenced in the petition.

B. When Health and Welfare is a party. When the Idaho Department of Health and Welfare (IDHW) is a party to a case in which child support and/or other financial matters regarding the child(ren) are at issue, IDHW shall disclose all financial information at its disposal after redacting social security numbers to the other parties who have made an appearance in the case.

C. Spousal maintenance and attorneys' fees and costs. If either party has requested an award of spousal maintenance or an award of attorneys' fees and costs, each party shall disclose the following information to the other

1. a fully completed affidavit containing the information required by Rule 504.A.2 and

2. those documents set forth in subdivision A.2 above.

D. Property. Unless the parties have entered into a written agreement disposing of all property issues in the case or no property is at issue in the case, each party shall prepare a list of all items having a fair market value more than $100 of real and personal property, including, but not limited to, household furniture, furnishings, antiques, artwork, vehicles, jewelry and similar items in which any party has an interest, together with the party's estimate of current fair market value (not replacement value) for each item. In addition, each party shall provide to the other party the following documents:

1. copies of all deeds, deeds of trust, purchase agreements, escrow documents, settlement sheets, and all other documents that disclose the ownership, legal description, purchase price and encumbrances of all real property owned by any party;

2. copies of all monthly or periodic bank, checking, savings, brokerage and security account statements in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure;

3. copies of all monthly or periodic statements and documents showing the value of all pension, retirement, stock option, and annuity balances, including Individual Retirement Accounts, 401(k) accounts, and all other retirement and employee benefits and accounts in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information;

4. copies of all monthly or periodic statements and documents showing the cash surrender value, face value, and premiums charged for all life insurance policies in which any party has an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;

5. copies of all documents that may assist in identifying or valuing any item of real or personal property in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition, including any documents that the party may rely upon in placing a value on any item of real or personal property;

6. copies of all business tax returns, balance sheets, profit and loss statements, and all documents that may assist in identifying or valuing any business or business interest for the last two (2) completed calendar or fiscal years and through the latest available date prior to disclosure with respect to any business or entity in which any party has an interest or had an interest for the period commencing twenty-four (24) months prior to the filing of the petition; and

7. copies of any bankruptcy filings of the parties, or either of them.

If a party does not possess a copy of any of the above documents, they shall provide the name, address and telephone number of the custodian of the documents.

E. Debts. Unless the parties have entered into a written agreement disposing of all debt issues in the case or no debts are at issue in the case, each party shall prepare a list of a list of all debts identifying the creditors and the amounts owed. In addition, each party shall provide to the other party the following documents:

1. copies of all monthly or periodic statements and documents showing the balances owing on all mortgages, notes, liens, and encumbrances outstanding against all real property and personal property in which the party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information; and

2. copies of credit card statements and debt statements for all months for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure.

F. Disclosure of witnesses. Forty-two (42) days before trial each party shall disclose the names, addresses, and telephone numbers of any witness whom the disclosing party expects to call at trial, along with a statement fairly describing the substance of each witness's expected testimony. A party shall not be allowed to call witnesses who have not been disclosed at least forty-two (42) days before trial, or such different period as may be ordered by the court.

G. Disclosure of expert witnesses. Forty-two (42) days before trial each party shall disclose the name, address and telephone number of any person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness, and the name and address of the custodian of copies of any reports prepared by the expert. A party shall not be allowed to call an expert witness who has not been disclosed at least forty-two (42) days before trial or such different period as may be ordered by the court.

H. Continuing Duty to Disclose. The duty described in this rule shall be a continuing duty, and each party shall make additional or amended disclosures before a motion hearing or trial in the event new or different information is discovered or revealed.

I. Not Filed with Court. The disclosures shall not be filed with the court. The party receiving disclosures shall retain the original of the disclosures with a copy of the notice of service affixed thereto until one (1) year after final disposition of the action. At that time, the originals may be destroyed unless the court, on motion of any party and for good cause shown, orders that the originals be preserved for a longer period.

J. Notice of Serving. The party serving disclosures shall file with the court a notice of when the disclosures were served and upon whom.


From: http://www.isc.idaho.gov/irflp401
As viewed August 31, 2014. 

Idaho Law assumes that without a court order both parents have some right to see their children. As to how long or under what conditions each parent can see the children there is no guidance.

Idaho Law does not state what parental rights exist between parents against each other without a court order, but does give the Court guidance that in a dispute "there shall be a presumption that joint custody is in the best interests of a minor child or children," but that the presumption can be overcome by "a preponderance of the evidence to the contrary." I.C. Sec. 32-717B (See http://legislature.idaho.gov/idstat/Title32/T32CH7SECT32-717B.htm last visited 7/5/14)

If there is a dispute as to what the parenting schedule should be you should see an attorney immediately.

In extreme cases a police report can be filed and the prosecutor can charge 'Child Custody Interference.' Despite the law, the police and prosecutors may be reluctant to get involved without a court order and may just tell you to talk to a lawyer to obtain a custody order.

Please read the definition of the crime of 'Child Custody Interference' as follows:

CHAPTER 45 KIDNAPPING
 18-4506. CHILD CUSTODY INTERFERENCE DEFINED -- DEFENSES -- PUNISHMENT. 1. A person commits child custody interference if the person, whether a parent or other, or agent of that person, intentionally and without lawful authority:
(a)  Takes, entices away, keeps or withholds any minor child from a parent or another person or institution having custody, joint custody, visitation or other parental rights, whether such rights arise from temporary or permanent custody order, or from the equal custodial rights of each parent in the absence of a custody order; or
(b)  Takes, entices away, keeps or withholds a minor child from a parent after commencement of an action relating to child visitation or custody but prior to the issuance of an order determining custody or visitation rights.
2.  It shall be an affirmative defense to a violation of the provisions of subsection 1. of this section that:
(a)  The action is taken to protect the child from imminent physical harm;
(b)  The action is taken by a parent fleeing from imminent physical harm to himself;
(c)  The action is consented to by the lawful custodian of the child; or
(d)  The child is returned within twenty-four (24) hours after expiration of an authorized visitation privilege.
3.  A violation of the provisions of subsection 1. of this section shall be a felony, unless the defendant did not take the child outside the state, and the child was voluntarily returned unharmed prior to the defendant's arrest in which case the violation shall be reduced to a misdemeanor.
4.  Any reasonable expenses incurred by a lawful custodian in locating or attempting to locate a child taken in violation of the provisions of subsection 1. of this section may be assessed against the defendant at the court's discretion in accordance with chapter 53, title 19, Idaho Code. (See http://legislature.idaho.gov/idstat/Title18/T18CH45SECT18-4506.htm, last visited 7/5/14, underlining added for emphasis)

If you live in Idaho and the other parent lives out of state or if you live out of state and the other parent lives in Idaho and you live in another state then you need to be aware of certain provisions of the UCCJEA. You should call an attorney immediately because you may have gained or lost certain rights solely because of where you live, your child lives or the other parent lives. 

PURPOSE OF UCCJEA. The purpose of the UCCJEA is to  reduce disputes between the states regarding which state has the ability to make a decision regarding a child's custody, welfare etc. In the past courts would each make a different decision about a child and then argue about which order is controlling or which state should have made a decision. These arguments still occur but generally there are less of them because the UCCJEA is the law in each state and the UCCJEA has a system of deciding which state should make that child custody decision. 

SIX MONTHS. If you do not have a custody order then the general idea is that the court of the state that the children have lived in for the last 6 months is their 'home state,' there are some exceptions. Also if there is a custody order it could be modified by a new state if the minor children and parents are not in the state that made the last custody order. This is highly complicated but can be explained by an attorney. 

JURISDICTION. According to Black's Law Dictionary "A court's power to decide a case or issue a decree." In the context of child custody it is the court's power to make an initial custody order or to modify a previous custody order. 

INCONVENIENT FORUM. Even if there is jurisdiction a court can decide that it would be better for the case to be decided in another state and therefore transferred to that state if certain conditions apply such as, where the evidence and witnesses are. This is a separate decision from jurisdiction and the UCCJEA states which court can make that decision.

CHILD SUPPORT IS SEPARATE. Oddly enough the state where the payor resides can have jurisdiction over child support while a different state has jurisdiction over custody. 

In conclusion the Uniform Child Custody Jurisdiction and Enforcement Act has some provisions which are important to know whether or not you are looking for a modification or a custody order, if you and your child or you and the other parent live in different states you can be dragged into court in that other state. You should know under what circumstances you can be dragged into court in that other state and if you wish to prevent it you might have to request a custody order in your state before the other parent does in their state. 

There is a new rule for parenting evaluations as of July 1, 2013 the Supreme Court of Idaho has completely changed the method in which custody evaluations are done in Idaho . 

http://www.isc.idaho.gov/ircp16q

The new rule changes:

• How a custody evaluator can be appointed,
• Who is qualified to serve as a custody evaluator, 
  
• Evidence concerns about admissibility of the report, 
• Determines what information the custody evaluator can use, and 
• Allows court to determine how the evaluator will be paid, etc.

In summary, you will need an attorney in order to have a custody evaluation and you should contact one immediately. 

By Selim Star. 
Once a divorce is filed the Judge will enter a Joint Preliminary Injunction automatically to prevent the divorcing parties from engaging in certain conduct. Many times I am asked "We are considering a divorce and my spouse is talking about leaving the state with our child, how do I stop her/him?" or "How do I prevent my spouse from entering my residence?" or "How do I prevent my spouse from getting new debts that I'll be liable for." The Joint Preliminary Injunction may help with these problems. 

MAY PREVENT CHILD FROM LEAVING STATE. There are many times when a divorcing couple might have a dispute about whether a parent can move with a child out of Idaho. The Joint Preliminary Injunction prevents either parent from leaving the state for longer than a certain time. In general if you have a planned trip to leave the state, like to visit family, you can get permission in writing or ask the court for an order. Upon motion the judge may allow a parent to move out of state before trial. 

MAY PREVENT NEW DEBTS. Only in certain circumstances can a spouse add debt. 

MAY PREVENT UNFETTERED ACCESS TO RESIDENCE. Once the parties have separate residences the parties need to respect each other's privacy as is stated. 

GENERALLY BEGINS TO BE IN EFFECT WHEN DEFENDANT IS SERVED. This may differ from Judge to Judge and county to county. 

Below is the text of the Joint Preliminary Injunction that has been used in Blaine County. Other counties have different language and enjoin the divorcing parties from different activities. 


JOINT PRELIMINARY INJUNCTION

NOTICE! READ THIS DOCUMENT CAREFULLY- YOU MAY BE HELD IN CONTEMPT OF COURT OR HAVE OTHER SANCTIONS IMPOSED AGAINST YOU FOR VIOLATION OF THIS ORDER.

IT IS HEREBY ORDERED that during  the period of time that the above-entitled action is pending, absent the subsequent order of the Court, the Plaintiff and Defendant are enjoined and prohibited from:

1.         Transferring, encumbering, concealing, selling or otherwise disposing of any joint. common or community property without the. written consent of the opposing party.

2.         Incurring any debt, except in the usual course of business or for the costs and expenses of this litigation or for the necessities of life, without the written consent of the opposing party.

3.         Removing any child to which the opposing party may have a legal claim for custody or control from the jurisdiction of the court for any period exceeding 72 hours.

4.         Cashing, borrowing against, canceling, transferring, disposing of or changing the beneficiaries of any insurance or indemnity policy, including without limitation life, health. automobile or disability insurance, held for the benefit of either party or any child.

5.         Possessing or attempting to possess any real or personal property currently in the possession of the opposing party.

6.         Terminating or otherwise affecting the service of water, power, gas, telephone cable or other utilities or services at the community or customary residence of the opposing party.

7.         Excluding the other party from or preventing access to: a) the usual residence of the opposing party, b) places where community property or property of the other is stored or c) business or tax records of the parties. If the parties maintain separate residences, neither shall attempt to enter or gain access to the residence of the other without the written permission of the opposing party.

5.         Taking any action that may diminish the community or separate property interest of the opposing: party in any business or that may limit access of inc opposing party to the care, custody and control of any property, accounts or records of that business.

IT IS FURTHER ORDERED that a copy of this order shall be personally provided to the Plaintiff and/or delivered to counsel for the Plaintiff to provide to the Plaintiff and personally served by the Plaintiff upon the Defendant at the time of service of the Summons and Complaint and that this order shall be made a part of the court record in this matter.

EACH VIOLATION OF THIS ORDER MAY RESULT IN INDIVIDUAL SANCTIONS INCLUDING, BUT NOT LIMITED TO, A FINE OF UP TO $5000, A MAXIMUM OF FIVE DAYS IN JAIL AND AN AWARD OF ATTORNEY FEES.

In all cases regarding children both parents will have to attend parenting classes.  Generally in all paternity, custody and divorce cases, the court will automatically order the parents to  attend parenting classes. 

It is encouraged that both parents attend the same sessions because there are joint workshops for the parents. If that is not possible due to work or too much animosity the parties can attend separate sections. In addition children over 5 are usually required to attend. 

Parenting classes can even be done before a divorce or custody case is filed.

Be aware that many times your case cannot be finalized by an agreement unless both parents have attended class and received a certificate of attendance. The Order does list fines and penalties for non-attendance. 
Make sure that you get your certificate of completion as you will have to file it with the court. 

The order generally has all the information. If you have a request for an exception, like attending in another county, or another month, or separate sessions from the other parent, contact your attorney or the court regarding that exception. 

BLAINE COUNTY. In Blaine County they are offered once every two months at the courthouse in Hailey and are usually from 6-9 pm for three separate days, a Tuesday, Thursday and next Tuesday. There is a one time fee of $60 payable on the first day. Questions call the court (208) 788-5521.

OTHER COUNTIES. If you are unable to attend the class assigned to you, you can wait until the next class or attend in another county like Jerome((208) 644-2600), Twin Falls ((208) 736-4025) or Ada County ((208) 287-7606).  Ada County is sometimes advantageous because it is offered every Wednesday and is done in one day (More Info On Ada County Classes). Call the other counties' courthouses to get on their list and get the information. 

OUT OF STATE. If one party lives outside of Idaho he or she can attend parenting classes in his state, most courts offer them and the certificate can be submitted to the court.

SAMPLE ORDER TO ATTEND PARENTING TIME IN BLAINE COUNTY

1.         The Plaintiff and the Defendant above named are each ordered to attend the following Parenting Classes directed by the Court-,and their children between the age of 6 and 17 shall attend the Children's Program for children of divorcing parents. There will be three (3), three- (3) hour classes for the parents and each child between the ages of 6 and 17 will attend one- three (3) hour class.

2.         Children's Program Classes are divided into two groups by age:

Group I           Ages 6-10

Group II          Ages ll-17

Children less than 6 years of age cannot attend the Children's Program nor may children attend the Parenting Classes. The Children's Classes will he held at the same time and locations as the Parent Classes. Each child will attend I night. The Custodial Parent is responsible to bring the children to their group Classes.

Group 1 class for Children 6 through 10 years of age will he held on the same night as Parenting Class A.

Group 2 class for Children Ii through 17 will he held on the same night as Parenting Class B.

3.         The parties shall attend all three of the following Parenting Classes at the Blaine County Judicial Building, 201 nd Ave South. Suite 106. Hailey, Idaho. in the Magistrate Courtroom starting at 6:00 p.m.. and ending at 9:00 p.m. on the following dates:

TUESDAY    

THURSDAY 

TUESDAY    

4.         Each parent shall pay a $60.00 fee at the start of the first session. CASH ONLY!!!!

Failure of the parties, or either of them, to pay the fees or to timely appear in person at the Parenting Classes or failure to bring the children to their assigned Children's Class, and stay for the full session may result in the imposition of sanctions for Contempt, which may include a fine or jail term or both, pursuant to Idaho Code 7-610.

6.         At the time a complaint for divorce is filed and a summons is issued, the Clerk of the Court shall file the original and deliver two (2) copies of this Order with the summons. The Plaintiff and Plaintiffs counsel, as appropriate, shall timely serve a copy of this Order upon the Plaintiff. Service of this Order on the Defendant shall be at the time of service of the summons and complaint, which shall be at least five (5) days prior to the Parenting Classes. It is Plaintiffs or Plaintiffs counsel's responsibility to make service of this Order on the Defendant. The Return of Service or Acceptance of Service must indicate that service of this Order to Attend Parenting Classes and Children's Program was made on the Defendant.

7.         Except in the case of an emergency or subsequent Court Order for good cause shown, attendance at the Parenting Classes and Children's Program by their children is required before any bearing and before a Decree of Divorce is granted.

The terms of this Order supercede any Order pursuant to the Domestic Violence Prevention Act as it concerns contact of the parties. Contact will be allowed for the purpose of complying with this Order.

9.         If a person attending the Parenting Class or Children's Program needs the services of an interpreter, the Court will provide that service. However, IT IS THE PARENTS' RESPONSIBILITY TO INFORM THE COURT 7 DAYS IN ADVANCE IF THEY WILL NEED THE ASSISTANCE OF AN INTERPRETER so that the Court can make

appropriate arrangements.

IT IS SO ORDERED

R. Ted Israel, Magistrate Judge

PLEASE NOTE THE LAW HAS COMPLETELY CHANGED, PLEASE SEE THE OTHER BLOG POST ON PARENTING EVALUATIONS.

In Idaho, a custody evaluation is a formalized process through the court rules to have a therapist, psychologist or psychiatrist evaluate what would be in the best interest of the children, according to their observations and training. If you feel that you need a custody evaluation or anticipate an extended argument regarding custody, please contact an attorney immediately. 

The court has authority to order such evaluation under Physical and Mental Examination of Person I.R.C.P. 35(a) but the Rule is not designed specifically for custody evaluations and attorneys generally file a motion to request an order naming the evaluator, stating who is paying, requiring the parties to cooperate, and addressing the issue of the reports admissability.

Not every case needs an evaluation and the vast majority are resolved without a custody evaluation. 

Only through a discussion between you and your lawyer can a decision be made whether the hire a custody evaluator or not. The cost of an evaluation can really vary greatly from $1000 to $6000 or more. 

STARTING AN EVALUATION.  Your attorney must file a motion to start the evaluation. The court can assign a joint evaluator and divide the cost, or the parties can agree upon an evaluator and a division of cost. In addition both parties can hire their own evaluator or one party can hire an evaluator while the other party does not. 

PROCESS. Typically a custody evaluation involves a mental health professional interviewing both parents, the children with the parents, psychometric testing, interviewing collateral contacts such as grandparents, friends, spouses, siblings, teachers or anyone the parents ask the evaluator to speak to. The evaluator puts his findings into a report and generally makes a recommendation for custody and parenting time. The evaluator can make findings of parental alienation, abuse, neglect or merely craft a schedule that is in that evaluators opinion best for the children.

PICKING AN EVALUATOR. There is more to the decision of which evaluator to hire, than just deciding which evaluator has a better resume. Usually your lawyer has some experience with a particular evaluator or can easily speak to a lawyer that does have experience with that evaluator. Practical experience as to the evaluator's professionalism is usually the most important factor in making a choice. 

As an attorney I have had many, many clients and potential clients come to me and tell me that she or he has not seen their child in a long while. In some cases it is has been a recent separation and only been a week or so, some cases a month and others years. 

ACT NOW - In all cases something needs to be done quickly. I can't emphasize that enough. DO NOT WAIT, do something immediately. It can take 20 days or much longer (depending on the court's schedule) to get the first court date. Should the other parent refuse to allow any contact that can be a rather long time to wait.

NO EXCUSES - I have heard many excuses, such as "I'm letting my ex cool down", or "My daughter does not want to see me right now." These excuses may prevent you from the only actions that will allow you to see your children. In addition if you prefer an agreement, an agreement can still be reached after you have filed a court action.  

ABSENCE MAKES OWN BARRIER - In my experience separation can become its own barrier in many ways, such as the children getting their image of the absent parent painted by the present parent or present parent's family. Typically the negative images wear off with constant exposure to the absent parent so they know that he/she is not bad. In addition a child may not want to see the absent parent because they feel that the absent parent does not want to see them, or that the absent parent does not know how  to care for them. In many cases the longer it takes the less comfortable the child is with seeing the absent parent. Not only does the child think "why doesn't dad/mom want to see me," but judges question why a parent would let so much time pass. 

ENFORCEMENT - In general if you have a specific custody order or decree of divorce you can call your local sheriff to enforce it. If your custody or or decree of divorce says something like, "By agreement of the parties" then the sheriffs usually won't enforce it and tell you to see an attorney. In most cases you should be able to see your children even if you owe child support. It is advisable that you speak to an attorney before you call the sheriffs office to enforce the custody order. 

MODIFICATION - If your custody order or decree of divorce is old and doesn't reflect reality or if for some reason you are not happy with the amount of time or specific time ordered to you, you should see an attorney immediately. Delay can only hurt you! Make sure that you consult legal counsel before agreeing to a modification as you might be entitled to far more time with your children then the other parent is willing to offer you, even after not seeing them for a while.

CONSULTATION - My office offers a $100 consultation wherein we can get you a plan towards reunification with your child as soon as possible. Within the first consultation if you bring your prior orders (if any) we should be able to have a gauge of your possibility for success, a chronological detail of what court dates and paperwork is necessary, and an idea of what the matter will cost you. 

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 

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