Text of ID S 1309 (2010)
Adds to and amends existing law relating to de facto custodians to provide for de facto custodians; to provide that de facto custodians may initiate proceedings for the appointment of a guardian; and to revise provisions relating to the recognition of de facto custodians relating to standing in cer…
Legislative text is a public record. Where LegiScan supplied it, the CC BY 4.0 credit applies.
Source: LegiScan. Bill data and text from LegiScan (legiscan.com), licensed CC BY 4.0 and used in modified form. LegiScan does not endorse the Trans Data Initiative. License: CC BY 4.0(opens another site). Source page(opens another site)
As introduced
16,558 characters
LEGISLATURE OF THE STATE OF IDAHO
Sixtieth Legislature
Second Regular Session 2010
IN THE SENATE
SENATE BILL NO. 1309
BY JUDICIARY AND RULES COMMITTEE
AN ACT
1
RELATING TO DE FACTO CUSTODIANS; AMENDING TITLE 32, IDAHO CODE, BY THE
2
ADDITION OF A NEW CHAPTER 17, TITLE 32, IDAHO CODE, TO PROVIDE A SHORT
3
TITLE, TO PROVIDE A PURPOSE, TO PROVIDE FOR DE FACTO CUSTODIANS,
4
TO PROVIDE FOR PETITIONS FOR CUSTODY AND MOTIONS TO INTERVENE BY
5
PERSONS SEEKING DETERMINATIONS THAT THEY ARE DE FACTO CUSTODIANS, TO
6
PROVIDE FOR NOTICE, TO REQUIRE STIPULATED FACTS OR FINDINGS OF FACT
7
THAT A PERSON IS A DE FACTO CUSTODIAN, TO PROVIDE CERTAIN EVIDENTIARY
8
STANDARDS, TO PROVIDE FOR THE APPLICATION OF SPECIFIED STANDARDS AND
9
CONSIDERATIONS RELATING TO A DETERMINATION OF THE BEST INTERESTS OF
10
THE CHILD, TO PROVIDE FOR DE FACTO CUSTODIAN ORDERS, TO PROVIDE FOR
11
ACCESS TO CERTAIN RECORDS AND TO PROVIDE FOR TERMINATION OF CUSTODY
12
ORDERS; AMENDING SECTION 155207, IDAHO CODE, TO REVISE PROVISIONS
13
RELATING TO THE APPOINTMENT OF GUARDIANS OF MINORS, TO PROVIDE THAT
14
DE FACTO CUSTODIANS MAY INITIATE PROCEEDINGS FOR THE APPOINTMENT OF A
15
GUARDIAN, TO REVISE PROVISIONS RELATING TO NOTICE AND TO MAKE TECHNICAL
16
CORRECTIONS; AND AMENDING SECTION 155213, IDAHO CODE, TO REVISE A
17
DEFINITION OF "DE FACTO CUSTODIAN" AND TO REVISE PROVISIONS RELATING TO
18
THE RECOGNITION OF DE FACTO CUSTODIANS RELATING TO STANDING IN CERTAIN
19
PROCEEDINGS.
20
Be It Enacted by the Legislature of the State of Idaho:
21
SECTION 1. That Title 32, Idaho Code, be, and the same is hereby amended
22
by the addition thereto of a NEW CHAPTER, to be known and designated as
23
Chapter 17, Title 32, Idaho Code, and to read as follows:
24
CHAPTER 17
25
DE FACTO CUSTODIANS
26
321701.
SHORT TITLE. This chapter may be known and cited as the "De
27
Facto Custodian Act."
28
321702.
PURPOSE. The purpose of this act is to:
29
(1)
Give constitutionally required deference to the decisions of fit
30
parents in custody actions brought by third parties;
31
(2)
Subject to such constitutionally required deference, meet the
32
needs of children for caring and stable homes by providing a flexible method
33
by which a third party who has cared for and supported a child may obtain
34
legal and physical custody of the child where such custody is in the child’s
35
best interests.
36
321703.
DE
FACTO
CUSTODIANS.
(1)
De
facto
custodian
means
an
37
individual who, either individually or together with a copetitioner, has
38
been the primary caretaker and primary financial supporter of a child who,
39
2
preceding the filing of the petition, resided with the individual for a
1
period or periods amounting to:
2
(a) Six (6) months or more if the child is under three (3) years of age;
3
or
4
(b) One (1) year or more if the child is three (3) years of age or older.
5
(2)
Any period of time after the filing of a petition pursuant to this
6
chapter shall not be included in determining whether the child has resided
7
with the individual for the time period as provided in subsection (1) of this
8
section.
9
(3) An individual shall not be deemed a de facto custodian if a child has
10
resided with the individual because:
11
(a) The child was placed in the individual’s care through a court order
12
or voluntary placement agreement under title 16, Idaho Code; or
13
(b) The individual is or was cohabiting with, or is or was married to, a
14
parent of the child.
15
321704.
COMMENCEMENT OF PROCEEDINGS. (1) A child custody proceeding
16
may be initiated in any court of this state with jurisdiction to determine
17
child custody matters, by an individual:
18
(a)
Filing a petition seeking a determination that he or she is a de
19
facto custodian pursuant to section 321703, Idaho Code, and seeking
20
custody of a child; or
21
(b) Filing a motion seeking permissive intervention pursuant to rule 24
22
of the Idaho rules of civil procedure, in a pending custody proceeding
23
seeking a determination that he or she is a de facto custodian pursuant
24
to section 321703, Idaho Code, and seeking custody of a child.
25
(2)
A petition for custody or a motion to intervene based on the
26
petitioners or intervenors alleged status as a de facto custodian, filed
27
under this section, must state and allege:
28
(a)
The name and address of the petitioner or intervenor and any prior
29
or other name used by the petitioner or intervenor;
30
(b)
The name of the respondent mother and father or guardian(s) and
31
any prior or other name used by the respondent(s) and known to the
32
petitioner or intervenor;
33
(c) The name and date of birth of each child for whom custody is sought;
34
(d) The relationship of the petitioner or intervenor to each child for
35
whom custody is sought;
36
(e)
The
basis
for
jurisdiction
asserted
by
the
petitioner
or
37
intervenor;
38
(f)
The current legal and physical custodial status of each child
39
for whom custody is sought and a list of all prior orders of custody,
40
including temporary orders, if known to the petitioner or intervenor;
41
(g) Whether any party is a member of the armed services;
42
(h)
The length of time each child has resided with the petitioner or
43
intervenor and has resided in the state of Idaho, and the nature of
44
the petitioners or intervenors role in caring for each child for whom
45
custody is sought;
46
(i) The financial support provided by the petitioner or intervenor for
47
each child for whom custody is sought;
48
3
(j) Whether a proceeding involving custody of the child is pending in a
1
court in this state or elsewhere;
2
(k)
Whether physical and/or legal custody should be granted to and/or
3
shared with the respondent(s);
4
(l) Whether any temporary or permanent child support, attorney’s fees,
5
costs and disbursements are sought;
6
(m)
Whether an order of protection under section 396304, Idaho Code,
7
or a similar law of another state, that governs the parties or a party
8
and a minor child of the parties is in effect and, if so, the district
9
court or similar jurisdiction in which it was entered; and
10
(n) The basis upon which the petitioner or intervenor is claiming that
11
it is in the best interests of the child, as defined by section 32717,
12
Idaho Code, that the petitioner or intervenor have custody of the child.
13
(3)
The petition or motion must be verified by the petitioner or
14
intervenor.
15
(4) Written notice of a hearing on a petition or motion to intervene for
16
custody of a child by a de facto custodian must be given to:
17
(a) The parent(s) of the child, if:
18
(i)
The person’s name appears on the child’s birth certificate as
19
a parent;
20
(ii) The person has substantially supported the child;
21
(iii) The person either was married to the person designated on the
22
birth certificate as the natural mother within the three hundred
23
twentyfive (325) days before the child’s birth or married that
24
person within the six (6) months after the child’s birth;
25
(iv)
The person is openly living with the child or the person
26
designated on the birth certificate as the natural mother of the
27
child, or both;
28
(v)
The person has been adjudicated the child’s parent;
29
(vi) The person has filed a paternity action within six (6) months
30
after the child’s birth and the action is still pending; or
31
(vii) The person and the mother of the child signed a voluntary
32
acknowledgment of paternity pursuant to section 71106, Idaho
33
Code;
34
(b) The guardian or legal custodian, if any, of the child; and
35
(c) The child’s tribe pursuant to federal law, if the child is an Indian
36
child as defined in the Indian child welfare act, 25 U.S.C. 1901, et seq.
37
(5)
Notice under this section need not be given to a person listed in
38
subsection (4) of this section whose parental rights have been terminated.
39
(6)
Written notice of a hearing on a petition for custody of a child
40
by a de facto custodian must be given to the Idaho department of health and
41
welfare if the petitioner has reason to believe that either parent receives
42
public assistance, the petitioner receives public assistance on behalf
43
of the child or either parent receives child support enforcement services
44
from the Idaho department of health and welfare or applies for such public
45
assistance or child support enforcement services after a petition under this
46
section is filed. Notice to the Idaho department of health and welfare must
47
include a copy of the petition.
48
(7)
In an action for custody of a child by a de facto custodian, the
49
parties must stipulate to, or the court must find, facts establishing by
50
4
clear and convincing evidence that the petitioner or intervenor is a de
1
facto custodian pursuant to the requirements of section 321703, Idaho Code,
2
before the court considers whether custody with the de facto custodian is in
3
the best interests of the child.
4
(8)
Once a court has found facts supporting the appointment of the
5
petitioner or intervenor as the de facto custodian of a child, the petitioner
6
or intervenor must prove by a preponderance of the evidence that it is in the
7
best interests of the child to be in the custody of the de facto custodian.
8
In determining the best interests of the child, the court shall apply the
9
standards as provided in section 32717(1), Idaho Code, and shall also
10
consider:
11
(a)
Whether the child is currently residing with the person seeking
12
such standing; and
13
(b) If the child is not currently residing with the person seeking such
14
standing, the length of time since the person served as the child’s
15
primary caregiver and primary financial supporter.
16
321705.
NATURE OF DE FACTO CUSTODIAN ORDER ACCESS TO RECORDS
17
TERMINATION OF DE FACTO CUSTODIANSHIP. (1) A court may enter an order
18
granting a de facto custodian sole or joint legal and/or physical custody as
19
defined in section 32717B(1), (2) and (3), Idaho Code, in the same manner as
20
it would grant such custody to a parent.
21
(2) An order granting custody to a de facto custodian is subject to the
22
continuing jurisdiction of the court and is modifiable in the same manner
23
as an order establishing parental custody pursuant to section 32717, Idaho
24
Code, or a similar provision.
25
(3)
A de facto custodian who has been granted sole or joint legal
26
custody of a child shall have access to records pertaining to the child who is
27
the subject of the de facto custodianship to the same extent as a parent would
28
have such access pursuant to an order of legal custody.
29
(4) Any party to the proceeding granting custody to a de facto custodian
30
may move for the termination of the custody order. A de facto custodian may
31
move for permission to resign as de facto custodian.
32
(a)
A party moving for termination of the de facto custodianchild
33
relationship
must
show
by
a
preponderance
of
the
evidence
that
34
termination of the relationship would be in the best interests of the
35
child.
36
(b)
A motion for termination or for resignation may, but need not,
37
include a proposal for the continuing custody of the child.
38
(c)
After
notice
and
hearing
on
a
motion
for
termination
or
39
resignation,
the court may terminate the custody of the de facto
40
custodian and may make any further orders that may be appropriate in the
41
best interests of the child.
42
SECTION 2. That Section 155207, Idaho Code, be, and the same is hereby
43
amended to read as follows:
44
155207.
COURT APPOINTMENT OF GUARDIAN OF MINOR PROCEDURE. (1)
45
Proceedings for the appointment of a guardian may be initiated by the
46
following persons:
47
(a) Aany relative of the minor,;
48
5
(b)
Tthe minor if he is fourteen (14) or more years of age;, a de facto
1
custodian of the minor,
2
(c) Any person who comes within section 155213(1), Idaho Code; or
3
(d) Aany person interested in the welfare of the minor.
4
(2)
Notice of the time and place of hearing of a petition for the
5
appointment of a guardian of a minor is to be given by the petitioner in the
6
manner prescribed by section 151401, of this code Idaho Code, to:
7
(a) The minor, if he is fourteen (14) or more years of age;
8
(b)
The person who has had the principal care and custody of the minor
9
during the sixty (60) days preceding the date of the petition;
10
(c)
The de facto custodian of the minor, if any Any person who comes
11
within section 155213(1), Idaho Code; and
12
(d) Any living parent of the minor; provided however, that the court may
13
waive notice to a living parent of the minor who is, or is alleged to be,
14
the father of the minor if:
15
(i)
The father was never married to the mother of the minor
16
and has failed to register his paternity as provided in section
17
161504(4), Idaho Code; or
18
(ii)
The court has been shown to its satisfaction circumstances
19
that would allow the entry of an order of termination of parental
20
rights pursuant to section 162005,
Idaho Code,
even though
21
termination of parental rights is not being sought as to such
22
father.
23
(3)
Upon hearing, if the court finds that a qualified person seeks
24
appointment, venue is proper, the required notices have been given, the
25
requirements of section 155204, of this part Idaho Code, have been met, and
26
the welfare and best interests of the minor will be served by the requested
27
appointment, it shall make the appointment.
In other cases the court may
28
dismiss the proceedings, or make any other disposition of the matter that
29
will best serve the interest of the minor.
30
(4) If necessary, the court may appoint a temporary guardian, with the
31
status of an ordinary guardian of a minor, but the authority of a temporary
32
guardian shall not last longer than six (6) months.
33
(5)
The court shall appoint an attorney to represent the minor if the
34
court determines that the minor possesses sufficient maturity to direct the
35
attorney.
If the court finds that the minor is not mature enough to direct
36
an attorney, the court shall appoint a guardian ad litem for the minor. The
37
court may decline to appoint an attorney or guardian ad litem if it finds in
38
writing that such appointment is not necessary to serve the best interests of
39
the minor or if the Idaho department of health and welfare has legal custody
40
of the child.
41
(6)
Letters of guardianship must indicate whether the guardian was
42
appointed by will or by court order.
43
SECTION 3. That Section 155213, Idaho Code, be, and the same is hereby
44
amended to read as follows:
45
155213.
DE FACTO CUSTODIAN. (1) "De facto custodian" means a person
46
who has either been appointed the de facto custodian pursuant to section
47
321703, Idaho Code, or if not so appointed, has been the primary caregiver
48
for, and primary financial supporter of, a child who, prior to the filing
49
6
of a petition for guardianship, has resided with the person for a period of
1
six (6) months or more if the child is under three (3) years of age and for a
2
period of one (1) year or more if the child is three (3) years of age or older.
3
(2) If a court determines by clear and convincing evidence that a person
4
meets the definition of a de facto custodian, and that recognition of the de
5
facto custodian is in the best interests of the child, the court shall give
6
the person the same standing that is given to each parent in proceedings for
7
appointment of a guardian of a minor.
In determining whether recognition
8
of a de facto custodian is in the child’s best interests, the court shall
9
consider:
10
(a)
Whether the child is currently residing with the person seeking
11
recognition as a de facto custodian such standing; and
12
(b)
If the child is not currently residing with the person seeking
13
de facto custodian status such standing, the length of time since the
14
person served as the child’s primary caregiver and primary financial
15
supporter.
16