As any parent knows, a child shouldn't always get his or her way, even when it comes to custody. However, when a court considers a child's custodial preference, it's not necessarily to grant the child's wish, but to ensure that the child's best interests are met. A child's desire to live with one parent becomes more significant to a custody decision when it's clear that the child can make an intelligent choice.
This article provides an overview child custody proceedings in Idaho.
Idaho child custody laws recognize two types of custody: physical and legal custody. Parents can share physical and legal custody (called "joint custody") or one parent may be granted sole physical and/or legal custody. Ultimately, the type of custody awarded in your case will depend on your child's best interests.
"Physical custody" is where a child lives. A parent with physical custody spends a substantial amount of time with the child. Yet, even in joint custody arrangements, parents won't necessarily have equal time with their kids. One parent may have three overnights per week, while the other parent has four.
"Legal custody" refers to a parent's right to make major decisions for the child. Parents with legal custody can decide where a child will attend school, what kind of medical care they'll receive, and whether they should be raised in a certain religious faith.
In most cases, it's in a child's best interests for parents to share legal custody. Where parents have a contentious relationship or live far apart, a judge may award one parent sole decision-making power over a child. See Idaho Code § 32-1011 (2020).
A parent can "win" a custody case if it's clear that granting that parent full custody would be the best situation for the child. See Idaho Code § 32-717 (2020). Custody decisions are easy when parents can agree on how to divide and share in the care and support their children, but a judge will step in when parents can't reach an agreement.
In Idaho, a judge will determine a child's best interests by considering the following factors:
Idaho child custody laws require a judge to consider any episodes of domestic violence committed by either parent. An abusive parent isn't automatically prohibited from receiving custody of his or her child, but he or she will face additional challenges to win full custody in Idaho.
The court may also consider any other circumstances affecting the safety, health or care of the child when deciding what arrangement will serve the child's best interests.
Children can express a preference in an Idaho custody case, but that doesn't mean it will change the outcome. There's no age at which a child's custodial preference is controlling. Instead, each case will depend on your family's situation and your child's unique needs. A child's parental preference is evaluated in every custody case.
However, a child's custodial wishes will only be given serious consideration in cases where a child is of a sufficient age and maturity. In one Idaho case, a 14 year-old's preference to live with her father was granted, because the court determined she was sufficiently mature and living with her father was in her best interests.
Additionally, a child's custodial preference can also apply to individuals other than the parents, such as a grandparent, when that person has acted as a de facto parent. A 12 year-old's desire to remain with his grandparents was given significant weight in one case. The boy was allowed to remain with his grandparents because the evidence showed they provided a good home and he was old enough and intelligent enough to express a well-reasoned preference.
Children rarely need to testify about their custodial preferences in open court. Idaho attempts to shield children from custody proceedings and the disputes of their parents except when absolutely necessary.
A judge or appointed professional will watch for signs that a parent is manipulating a child to express a certain custodial preference. Thus, when a child's preference is needed to make a custody decision, a trained child professional, like a custody evaluator, will typically interview the child outside of the parents' presence.
In families of more than one child, each child's interests and custodial desires will be considered separately. A child's parental preference can be used in a court case often without the child even setting foot in a courtroom. A licensed child therapist or guardian ad litem may be appointed in certain cases to ascertain a child's wishes - these individuals represent the child's interests in custody cases and will communicate those needs to a judge.
Alternatively, a judge may elect to meet with a child in chambers – meaning outside the courtroom. Attorneys are typically invited to attend these in-chambers interviews, although parents are not. Any testimony from the interview will be recorded by a court reporter so that it can be used later in court.
Situations change over time and eventually your custody order may need a tune-up. Either parent can file a request to modify custody. The court will schedule a hearing on your case to hear all the evidence.
However, a judge won't grant a custody modification unless there's been a material change in circumstances or a substantial amount of time has passed since your custody order was entered and a change is necessary for the child's well-being.
Parents can agree to a new custody order on their own, but in most cases the parents won't agree and judge will have to decide whether a modification is appropriate. A judge will evaluate the same best interests factors in a modification case.
If you still have questions about the effects of children's preferences in custody proceedings in Idaho, contact a local family law attorney for advice.