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)

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. 

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