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.

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. 

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.