English
EspañolWhat 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
