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Custody
Basic info and definitions
What is custody?
Custody is the legal responsibility for the care and supervision of a minor child. There’s legal custody and physical custody.
Legal custody means the right to make decisions about your child’s care, custody, and control.1 This includes the right to decide where your child will go to school and to make decisions about their health and general welfare.2
Physical custody means the right to have your child live with you and be under your care and supervision.3
1 I.C. § 32-1011
2 I.C. §§ 32-1012; 32-717B(3)
3 I.C. § 32-717B(2)
What types of custody are there?
Joint custody is when custody is given to both parents. The child has frequent and continuing contact with each parent. The judge can award joint physical custody, joint legal custody, or both. The judge will usually assume that joint custody is best for the child unless there is enough proof (a “preponderance of the evidence”) that it’s not. If the judge denies joint custody, the judge must explain why.1 To learn more about when the judge will not order joint custody, go to Can a parent who committed domestic violence get joint custody?
There are two parts of joint custody.
- Joint physical custody is when both parents care for and supervise the child. The child lives with each of them for significant time periods. The child is supposed to have frequent and continuing contact with both parents. However, this does not mean the child must spend equal time with each parent.
- Joint legal custody means that the parents share the legal rights, responsibilities, and power to make important decisions about the child’s health, education, and general welfare.2
Sole physical custody is when the child mostly lives with one parent. The other parent can still have the right to visit with the child.
Sole legal custody is when only one parent has the legal right to make important decisions about the child’s health, education, and welfare.
1 I.C. § 32-717B(1), (4), (5)
2 I.C. § 32-717B(2), (3)
How is paternity established?
When someone is legally recognized as the child’s father, this is called “establishing paternity.” When a court does this, it issues an “order of filiation.”1
If the mother is married when the child is conceived or born, the law assumes that her spouse is the child’s legal father.2 Married parents do not have to do anything else to establish paternity.
If the parents are not married, they can establish paternity in three ways:
- By getting married after their child is born;
- By signing and notarizing an “acknowledgment of paternity” form; or
- By filing a paternity case in court.3
1 I.C. § 7-1120
2 See I.C. § 7-1119
3 I.C. §§ 32-1006; 7-1106(1), 7-1110
Who is a “de facto custodian”?
You may be a de facto custodian if you:
- are related by blood to the child within three degrees. For example, you are their aunt, uncle, sibling, cousin, or great-grandparent; and
- were the main person caring for and financially supporting the child while living with them, during a time when a parent was absent and not participating regularly in their lives.1
To be considered the de facto custodian, you would have to have cared for the child under these circumstances for at least:
- six months if the child is under three years of age; or
- one year or longer if the child is three or older.1
The judge will also look at whether the children still live with you or how long it’s been since they did.2
Note: If you are the child’s stepparent or their parent’s live-in partner, you cannot be a de facto custodian.3
If you think you might be a de facto custodian, see How will the judge decide if a de facto custodian should have custody?
1 I.C. § 32-1703(1)(a)-(b)
2 I.C. § 32-1703(2)
3 I.C. § 32-1703(4)(b)
What is the role of a parenting coordinator?
A parenting coordinator is someone who helps parents work out their disagreements. The goal is to lessen the amount of conflict between the parents, which ultimately benefits the children.
The judge can appoint a parenting coordinator if the judge believes that one is needed. The judge will usually order the parents to split the costs for the parenting coordinator’s time.1 The parenting coordinator will report to the judge how things are going at least once every six months.2
1 I.C. § 32-717D(1), (3), (4)
2 I.C. § 32-717D(1)
What is a parenting plan?
A parenting plan is a written document that describes in detail what the custody and visitation arrangements are. It sets out when each parent will have time with the child. It also explains the parents’ responsibilities and how they will make important decisions.
In Idaho, parents must fill out a parenting plan form when they file for custody.1 The Bannock County Court Assistance Office has a YouTube video that explains how to complete the form.
If you are a victim or survivor of domestic violence, your parenting plan needs to be safe for you and your child. The best way to get help making a safe plan is to get advice from a lawyer who knows about custody and domestic violence. Go to our Idaho Finding a Lawyer page for legal referrals. If you have to be in court on your own without a lawyer, you may find it helpful to read this guide published by the National Council of Juvenile and Family Court Judges called 10 Things to Know About Parenting Plans in Cases Involving Domestic Violence.
1 See the Idaho Court Assistance Office (CAO) Family Law form called “CAO FL-3 Parenting Plan,” available at https://courtselfhelp.idaho.gov/Forms
What are some pros and cons of getting a custody order?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents fear that starting a court case will provoke the other parent. They may fear that the other parent will fight for more custody or visits than they are comfortable with.
Even if the other parent is uninvolved with the child now, s/he may become involved when a case is filed in court. Also, if the other parent fights for custody, the case may drag on for a long time. This can be emotionally and financially draining. When you are in court for custody, the judge will look into many aspects of your personal life. For example, the judge may look into your mental health, criminal record, substance abuse issues, and relationships. You may prefer to keep these things private.
On the other hand, getting a custody order from a court can set out what legal rights each of the parents has, which can be a benefit. A custody order can give you the legal rights to make decisions about your child and have your child live with you. Without an order, both parents may share these legal rights, even if one parent takes care of the child daily. However, if you file for custody, the other parent may also request these rights. If you and the other parent don’t agree, the judge will decide what custody arrangement is best for the child.
We strongly recommend that you get advice from a local lawyer. A lawyer can help you decide if filing for custody is best for you based on the facts of your situation. You can find legal help by going to our Idaho Finding a Lawyer page.
Should I start a court case to ask for supervised visitation?
If you’re worried about leaving your child alone with the abuser, you might think about asking a judge to order supervised visits. Supervised visits could be as lenient as having someone else there during the visits to “keep an eye” on things, or it could be as strict as having a professional appointed to observe and report back on the interaction between your child and the other parent. If you are already in court because the abuser filed for visitation or custody, it might be worth asking for supervised visits if you have a good reason. It depends on your situation.
However, if there is no court case going on now, it’s a good idea to talk to a lawyer before you start a case to ask for supervised visits. A custody lawyer in your area can explain what you need to prove to get supervised visits and how long they might last based on what is happening in your case.
Usually, supervised visits are only ordered for a short time but this may be different depending on where you live and who your judge is. The judge might order a professional to watch the visits, or a relative or other person known to either parent might volunteer to be the supervisor. If the supervisor doesn’t report any big problems back to the judge, the visits might become unsupervised. At the end of a case, the other parent might get more frequent and longer visits than s/he had before you went into court or even some form of custody.
If your child is in immediate danger from the abuser, you may need to start a case to ask for custody and supervised visits to protect your child. To find out what is best for your situation, you can look for legal advice using our Idaho Finding a Lawyer page.
Where can I find additional information about custody in Idaho?
You can find more information on the Idaho Courts Self-Help website. They have the forms for different types of cases:
- custody, paternity, visitation, and child support;
- changing a custody, visitation, or child support order;
- and more.
They also have brochures about custody, visitation, paternity, child support, and related topics.
You can also get information from the Court Assistance Offices, called “CAOs” for short. They can help you in the following ways:
- review court forms and documents before you file them;
- answer general questions about forms and documents;
- help you calculate child support or complete a parenting plan;
- let you use a computer to fill out interactive forms or do legal research on the law library website; and
- show you instructional videos, brochures, and pamphlets about the court system, family law, and domestic violence.
To find your local CAO location, click here.
WomensLaw.org does not have a relationship with these websites or endorse their services. We provide these links for your information only.
Who can get custody
Who can file for custody?
You can file for custody if you are:
- the child’s parent;
- a grandparent with whom the child lives in a stable relationship; or
- a “de facto custodian.”1
To learn who can be considered a de facto custodian, go to Who is a “de facto custodian”?
1 I.C. §§ 32-717(3); 32-1704(1)
Can a parent who committed domestic violence get joint custody?
The judge will usually assume that joint custody is best for the child. However, if you present enough proof (a “preponderance of the evidence”) showing that it’s not best for your child, the judge can deny joint custody. There is a specific exception for domestic violence. If a judge determined that one parent repeatedly (“habitually”) committed domestic violence, the judge must assume that joint custody is not best for the child. Instead, the judge can grant sole custody to the non-abusive parent.1 The judge can also order that the visits or the exchanges of the child be supervised by an agency or professional.2
1 I.C. § 32-717B(4), (5)
2 See I.C. § 32-717E
The custody process
What factors will a judge consider when deciding custody?
The judge will consider all relevant factors to figure out what type of custody is in your child’s best interests. The judge will look at the following factors:
- what the parents want;
- which parent the child wants to live with;
- how the child gets along with the parents and any siblings;
- how accustomed the child is to his/her home, school, and community;
- each parent’s character and life circumstances;
- the need for the child’s life to be stable and continue without big changes; and
- whether either parent committed domestic violence, even if it was not in front of the child.1
If you have a disability, you can show proof of how you will use adaptive equipment or supportive services to carry out your parenting responsibilities. The judge cannot discriminate against you just because of a disability. If the judge believes that your disability is relevant to the custody decision, the judge must clearly state in writing how your disability affects what is best for the child.2 A parent’s sexual preference or sexual orientation is not considered an impairment or disability.3
1 I.C. § 32-717(1)
2 I.C. §§ 32-717(2), (5); 32-1005(3)
3 I.C. § 32-1005(2)(b)
How will the judge decide if a de facto custodian should have custody?
If the judge determines that the person filing for custody is a de facto custodian, then the next step is for the judge to decide if it would be in the child’s best interests for him/her to have custody instead of the child’s parents or jointly with one of the parents.1
The judge can also consider why the child was in the care of the de facto custodian. For example, did the child stay with the de facto custodian while the parent was looking for work or going to school? The judge can also look at whether or not the child still lives with the de facto custodian. If the child does not, the judge can consider how long it has been since the person filing for custody last filled the role of de facto custodian.2
1 I.C. § 32-1704(2)(j), (6), (7)
2 I.C. § 32-1704(8)
What happens if I tell the judge the other parent abused the child?
If you say that the other parent abused or sexually abused the child, the judge must order the Department of Health and Welfare to investigate. The investigation must be done within thirty days. The judge will usually wait to get the report from the investigation before giving a final custody or visitation order.1 However, proving that a child was abused or sexually abused is hard. And there can be negative consequences if the judge doesn’t believe you. To be safe, ask an Idaho lawyer about the best way to bring your concerns to the judge.
1 I.C. § 32-717C
Is there anything I can do if my abusive partner keeps filing court cases against me?
If the abuser is self-represented (“pro se”) and keeps filing civil court cases against you to harass or harm (“maliciously injure”) you, this is known as “vexatious litigation.” An administrative judge can take steps to stop it by making a “pre-filing order.” This kind of order requires the abuser to get the judge’s permission before s/he can file any new court papers without a lawyer. To ask for a pre-filing order, you would make a motion to the district court judge or magistrate judge handling your case.1
The judge can make a pre-filing order against the abuser if any of the following has happened:
- The abuser filed and lost at least three civil court cases in the past seven years. (Small claims court cases do not count.)
- After losing a case, the abuser kept filing or trying to dispute the same issue, challenge the judge’s decision, or bring another case about the same issue.
- During any court case, the abuser filed multiple baseless motions, pleadings, or other legal papers, conducted unnecessary discovery, or acted in another way that had no purpose or caused delay.
- A judge in another court case already determined that the abuser was a “vexatious litigant.”2
Note: This law is only about pro se petitioners representing themselves without lawyers. It does not seem to address a situation where the abuser files many cases against you through a lawyer but, if this happens to you, check with an Idaho lawyer to see if the law might still apply.
In addition, there is a special law about divorce and custody cases. If the abuser files to change (modify) your divorce or custody order with no legal basis, just to harass you, this is known as a “vexatious petition.” If you have to go back to court to fight it, you can ask the judge to order the abuser to pay your legal fees and costs.3
1 ID R ADMIN Rule 59(a)(1), (b), (c)
2 ID R ADMIN Rule 59(d)
3 I.C. § 32-718
Steps to file for custody
Considerations before filing
Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.
However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.
Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.
You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.
In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.
Step 1: Prepare for the case
Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.
You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see What factors will a judge consider when deciding custody? for more information.
Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.
Step 2: File and serve the custody petition
The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.
The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.
| If you and the other parent are… | Then you can usually file for custody in… |
|---|---|
| married and getting divorced | the divorce case. |
| married but not divorcing | a separate custody petition. |
| not married | a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case. |
Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, go to Who can file for custody? or talk to a lawyer.
The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Idaho Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.
Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order and get temporary custody as part of the restraining order.
After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.
Step 3: Preliminary court dates
The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:
- problems with service of process;
- referrals to mediation;
- temporary custody and visitation orders; and
- pretrial motions.
During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.
For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.
Step 4: Reach an agreement or go to trial
There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.
Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.
Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.
Step 5: Options if you disagree with the order
If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.
You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:
- The other parent gets sent to jail or charged with child abuse or neglect;
- The other parent is not following the custody and visitation order; or
- Your child’s needs change in a big way.
After a custody order is issued
Can the non-custodial parent have access to the child's records?
A parent who does not have custody, known as the “non-custodial parent,” can still have access to the child’s records and information. This includes medical, dental, health, and school or educational records. However, the parent with custody, known as the “custodial parent,” can ask for the child’s address to be deleted from the records. If the custodial parent writes to the person who keeps the records at each location, known as the “records custodian, and asks for the address to be deleted, then the records custodian must do it.1
1 I.C. § 32-717A
Can I ask the judge to change the custody order after it is issued?
If you want to change your order, you can file a petition for modification. You must prove to the judge that:
- there has been a substantial and material change in circumstances; and
- the change you are asking for is in your child’s best interests.1
However, if only a “brief period of time” has passed since the judge issued your order, the judge may not agree to change it except to fix a clerical error. The law doesn’t specifically define how much time you need to wait before you can file a modification petition, though. Whether the judge agrees to hear your case could depend on many factors, such as:
- the individual judge;
- the type of change you’re asking for; and
- whether or not both parents agree to the change.1
You may want to speak with a lawyer in Idaho to get advice for your situation.
Also, the judge will make an exception if you or the other parent is a military service member and deploying. The judge can change your custody and visitation order temporarily while a parent is deployed. Then, after the parent returns from the deployment, the judge can quickly schedule a hearing to decide whether or not to continue the temporary order.2
Note: If the judge believes that one parent filed a modification petition just to annoy or harass the other parent, the judge can order the parent who filed to pay for the other parent’s lawyer and legal fees.3
1 See Instructions for Filing a Modification Petition on the Idaho Courts website
2 I.C. § 32-720
3 I.C. § 32-718
If I move to a new state, can I transfer my child custody case there?
After you get a final custody order, there may come a time when you and your children move to a different state. You can learn about transferring a custody case to a different state on our website.
Keep in mind that parents often need to get permission from a judge or the other parent to move out of state with their children. Therefore, it’s important to talk to a lawyer before you move. A lawyer can help you make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
