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…

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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