Do Grandparents Have Visitation Rights in Idaho?

Learn how a decision by the Idaho Supreme Court affects grandparents' rights to get visitation with their grandchildren over the parents' objections.

By , Legal Editor

The relationship between grandparents and grandchildren is special, and parents usually encourage that relationship. But in some situations, parents limit or completely cut off contact between their kids and the grandparents. Conflicts with the grandparents might come up after a divorce, after one parent dies, or simply when parents believe the grandparents are meddling in how they raise their children.

Many states have grandparent visitation laws that allow judges to give grandparents (and sometimes other relatives) the right to visit with children over the parents' objections—at least under certain circumstances. Idaho had a law like this, although it didn't set any restrictions on when grandparents could request these orders. But the Idaho Supreme Court overturned the law, holding that it was unconstitutional.

Idaho's Grandparent Visitation Law Ruled Unconstitutional

Idaho's grandparent visitation law provided that judges could grant visitation rights to both grandparents and great grandparents, as long as they could show that it would be in the children's best interests. (Idaho Code § 32-719.) Grandparents were allowed to seek these visitation orders even when the parents weren't getting divorced or both parents were no longer alive. All the grandparents needed to do was file a petition in court (in the county where the child was living) and provide convincing evidence that the visitation would be good for the child. While that might have been difficult to prove when the child's parents were fit and had cut off all contact, it wasn't impossible.

However, the Idaho Supreme Court ruled in September 2022 that the state's grandparent visitation law was unconstitutional, no matter how it was applied. In Nelson v. Evans, __ P.3d __ (Idaho Sup. Ct. 2022), the state's high court held that the law violated the fundamental rights of parents to make decisions concerning the care, custody, and control of their children. Courts have long recognized those rights as protected under the 14th Amendment of the U.S. Constitution. They're also reflected in Idaho law under the state's "Parental Rights Act." (Idaho Code §§32-1010−32-1014 (2022).)

The Nelson court pointed to three principles that apply to grandparent visitation, as set out by the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000):

  • the presumption that fit parents act in their children's best interests
  • the requirement that courts give "special weight" to fit parents' decisions to restrict or deny grandparent visitation, and
  • the prohibition on overstepping parents' decisions just because a different decision might be better.

Idaho's court found the state's grandparent visitation law violated those basic constitutional principles. It didn't serve any "compelling" state interest, because it didn't require proof that the children would be harmed if the grandparents couldn't visit them. Also, the law was too broad, because it didn't set any limits on when grandparents could request visitation orders. As the parents in this case argued, the law had no safeguards to prevent "otherwise fit parents from being hauled into court by overzealous grandparents."

What Can You Do If Your Grandchildren's Parents Won't Let You Visit?

In the wake of the Idaho Supreme Court's decision, the state's legislature might try to rewrite its grandparent visitation law in way that wouldn't violate parents' constitutional rights. Until then, there doesn't appear to be a legal way for grandparents to get visitation rights with a child living in Idaho when the parents won't allow it.

If you're on speaking terms with your grandchild's parent(s) or other legal guardian, you could ask if they would be willing to participate in mediation. Although custody mediation is usually used by parents who can't agree with each other about parenting time, it could also help parents and grandparents work out their differences about visitation. Sometimes, these conflicts arise from misunderstandings and communication problems. In those situations, a trained, neutral mediator can help people sort out the issues and identify possible solutions.

Can I Seek Custody of My Grandchildren?

When you've already been taking care of your grandchild in your home, you may request custody of the child either as part of the parent's Idaho divorce or in a separate proceeding.

Grandparent Custody Requests in the Parents' Divorce

If your grandchild's parents are getting divorced in Idaho, you may request custody in the divorce case—but only if the child has actually been living with you in a stable relationship. (Idaho Code § 32-717(3) (2022).)

Whenever a judge is making a decision about child custody in Idaho, the overriding principle is that the custody arrangements should be in the child's best interests. The judge must consider all of the relevant circumstances, including the parents' wishes and the child's need for continuity and stability. (Idaho Code § 32-717(1) (2022).)

Idaho courts have held that when a grandparent is seeking custody as part of the parents' divorce, judges should generally defer to a parent's wishes, as long as that parent is fit. Still, there could be situations when it would be in the child's best interests to stay with a grandparent who has taken on a parental role and has been providing for all of the child's needs for a considerable amount of time. (Overholser v. Overholser, 432 P.3d 52 (Idaho Sup. Ct. 2018).)

Seeking Custody as a Child's De Facto Custodian

You may also seek legal and physical custody of your grandchild outside of the divorce context by filing a petition to be declared the child's "de facto custodian." You must have been the child's primary caretaker (and financial supporter) for at least a year (or six months if the child is less than three years old)—and during that time, neither parent has been present or has consistently taken on parental duties. (Idaho Code §§ 32-1703, 32-1704 (2022).)

Even if you qualify as the de facto custodian, the judge will still defer to the decisions of fit parents when deciding whether it would be in the child's best interests to grant your custody request. (Idaho Code § 32-1702 (2022).)

Getting Help With Grandparent Custody and Visitation Requests

If you believe you qualify to be your grandchild's de facto custodian, you can get information from the Idaho Court Assistance Office on how to file for guardianship of a child. You can probably navigate the process on your own as long as the parents agree and sign the form to show their consent.

However, you should speak with a lawyer if you're seeking custody of your grandchild over the parents' objections—whether in a guardianship proceeding or in the parents' divorce. An experienced family law attorney can evaluate your situation and—if you decide to move ahead with your claims—can help you gather the kind of evidence you'll need to convince the judge that it would be in your child's best interests to continue living with you. An Idaho lawyer can also explain whether you have any legal options to seek visitation under current law.

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