Text of ID S 1382 (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. 1382 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 CUSTODIAN ACT 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: 38 2 (a) Is related to a child within the third degree of consanguinity or 1 affinity; and 2 (b) Either individually or together with a copetitioner has been the 3 primary caretaker and primary financial supporter of such child for a 4 period of: 5 (i) Six (6) months or more if the child is under three (3) years of 6 age; or 7 (ii) One (1) year or more if the child is three (3) years of age or 8 older. 9 (2) Any period of time after the filing of a petition pursuant to this 10 chapter shall not be included in determining whether the child has resided 11 with the individual for the time period as provided in subsection (1) of this 12 section. 13 (3) An individual shall not be deemed a de facto custodian if a child has 14 resided with the individual because: 15 (a) The child was placed in the individual’s care through a court order 16 or voluntary placement agreement under title 16, Idaho Code; or 17 (b) The individual is or was cohabiting with, or is or was married to, a 18 parent of the child. 19 32­1704. COMMENCEMENT OF PROCEEDINGS. (1) A child custody proceeding 20 may be initiated in any court of this state with jurisdiction to determine 21 child custody matters, by an individual: 22 (a) Filing a petition seeking a determination that he or she is a de 23 facto custodian pursuant to section 32­1703, Idaho Code, and seeking 24 custody of a child; or 25 (b) Filing a motion seeking permissive intervention pursuant to rule 24 26 of the Idaho rules of civil procedure, in a pending custody proceeding 27 seeking a determination that he or she is a de facto custodian pursuant 28 to section 32­1703, Idaho Code, and seeking custody of a child. 29 (2) A petition for custody or a motion to intervene based on the 30 petitioners or intervenors alleged status as a de facto custodian, filed 31 under this section, must state and allege: 32 (a) The name and address of the petitioner or intervenor and any prior 33 or other name used by the petitioner or intervenor; 34 (b) The name of the respondent mother and father or guardian(s) and 35 any prior or other name used by the respondent(s) and known to the 36 petitioner or intervenor; 37 (c) The name and date of birth of each child for whom custody is sought; 38 (d) The relationship of the petitioner or intervenor to each child for 39 whom custody is sought; 40 (e) The basis for jurisdiction asserted by the petitioner or 41 intervenor; 42 (f) The current legal and physical custodial status of each child 43 for whom custody is sought, whether a proceeding involving custody of 44 the child, including a proceeding for an order or protection pursuant 45 to section 39­6304, Idaho Code, is pending in a court in this state 46 or elsewhere, and a list of all prior orders of custody, including 47 temporary orders, if known to the petitioner or intervenor; 48 3 (g) Whether either parent is a member of the armed services, if known to 1 the petitioner or intervenor; 2 (h) The length of time each child has resided with the petitioner or 3 intervenor and the nature of the petitioners or intervenors role in 4 caring for each child for whom custody is sought; 5 (i) The financial support provided by the petitioner or intervenor for 6 each child for whom custody is sought; 7 (j) Whether physical and/or legal custody should be granted to and/or 8 shared with the respondent(s); and 9 (k) The basis upon which the petitioner or intervenor is claiming 10 that it is in the best interests of the child that the petitioner or 11 intervenor have custody of the child. 12 (3) The petition or motion must be verified by the petitioner or 13 intervenor. 14 (4) Written notice of a hearing on a petition or motion to intervene for 15 custody of a child by a de facto custodian must be given to: 16 (a) The parent(s) of the child as defined in section 16­2002(11) and 17 (12), Idaho Code; and 18 (b) The guardian or legal custodian, if any, of the child; and 19 (c) The child’s tribe pursuant to federal law, if the child is an Indian 20 child as defined in the Indian child welfare act, 25 U.S.C. 1901, et seq. 21 (5) Written notice of a hearing on a petition for custody of a child 22 by a de facto custodian must be given to the Idaho department of health and 23 welfare if the petitioner has reason to believe that either parent receives 24 public assistance, the petitioner receives public assistance on behalf 25 of the child or either parent receives child support enforcement services 26 from the Idaho department of health and welfare or applies for such public 27 assistance or child support enforcement services after a petition under this 28 section is filed. Notice to the Idaho department of health and welfare must 29 include a copy of the petition. 30 (6) In an action for custody of a child by a de facto custodian, the 31 parties must stipulate to, or the court must find, facts establishing by 32 clear and convincing evidence that the petitioner or intervenor is a de 33 facto custodian pursuant to the requirements of section 32­1703, Idaho Code, 34 before the court considers whether custody with the de facto custodian is in 35 the best interests of the child. 36 (7) Once a court has found facts supporting the appointment of the 37 petitioner or intervenor as the de facto custodian of a child, the petitioner 38 or intervenor must prove by a preponderance of the evidence that it is in the 39 best interests of the child to be in the custody of the de facto custodian. 40 In determining the best interests of the child, the court shall apply the 41 standards as provided in section 32­717(1), Idaho Code. 42 (8) In determining whether the petitioner or intervenor has 43 established that it is in the best interests of the child to be in the custody 44 of the de facto custodian, the court may also consider: 45 (a) The circumstances under which the child was allowed to remain in the 46 care of the de facto custodian, including whether the child was placed 47 with the de facto custodian to allow the parent to seek work or to attend 48 school; 49 4 (b) Whether the child is currently residing with the de facto custodian 1 and, if not, the length of time since the petitioner or intervenor last 2 functioned as the child’s de facto custodian. 3 32­1705. NATURE OF DE FACTO CUSTODIAN ORDER ­­ ACCESS TO RECORDS 4 ­­ TERMINATION OF DE FACTO CUSTODIANSHIP. (1) A court may enter an order 5 granting a de facto custodian sole or joint legal and/or physical custody as 6 defined in section 32­717B(1), (2) and (3), Idaho Code, in the same manner as 7 it would grant such custody to a parent. 8 (2) An order granting custody to a de facto custodian is subject to the 9 continuing jurisdiction of the court and is modifiable in the same manner 10 as an order establishing parental custody pursuant to section 32­717, Idaho 11 Code, or a similar provision. 12 (3) A de facto custodian who has been granted sole or joint legal 13 custody of a child shall have access to records pertaining to the child who is 14 the subject of the de facto custodianship to the same extent as a parent would 15 have such access pursuant to an order of legal custody. 16 (4) Any party to the proceeding granting custody to a de facto custodian 17 may move for the termination of the custody order. A de facto custodian may 18 move for permission to resign as de facto custodian. 19 (a) A party moving for termination of the de facto custodian­child 20 relationship must show by a preponderance of the evidence that 21 termination of the relationship would be in the best interests of the 22 child. 23 (b) A motion for termination or for resignation may, but need not, 24 include a proposal for the continuing custody of the child. 25 (c) After notice and hearing on a motion for termination or 26 resignation, the court may terminate the custody of the de facto 27 custodian and may make any further orders that may be appropriate in the 28 best interests of the child. 29 SECTION 2. That Section 15­5­207, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 15­5­207. COURT APPOINTMENT OF GUARDIAN OF MINOR ­­ PROCEDURE. (1) 32 Proceedings for the appointment of a guardian may be initiated by the 33 following persons: 34 (a) Aany relative of the minor,; 35 (b) Tthe minor if he is fourteen (14) or more years of age, a de facto 36 custodian of the minor,; 37 (c) Any person who comes within section 15­5­213(1), Idaho Code; or 38 (d) Aany person interested in the welfare of the minor. 39 (2) Notice of the time and place of hearing of a petition for the 40 appointment of a guardian of a minor is to be given by the petitioner in the 41 manner prescribed by section 15­1­401, of this code Idaho Code, to: 42 (a) The minor, if he is fourteen (14) or more years of age; 43 (b) The person who has had the principal care and custody of the minor 44 during the sixty (60) days preceding the date of the petition; 45 (c) The de facto custodian of the minor, if any Any person who comes 46 within section 15­5­213(1), Idaho Code; and 47 5 (d) Any living parent of the minor; provided however, that the court may 1 waive notice to a living parent of the minor who is, or is alleged to be, 2 the father of the minor if: 3 (i) The father was never married to the mother of the minor 4 and has failed to register his paternity as provided in section 5 16­1504(4), Idaho Code; or 6 (ii) The court has been shown to its satisfaction circumstances 7 that would allow the entry of an order of termination of parental 8 rights pursuant to section 16­2005, Idaho Code, even though 9 termination of parental rights is not being sought as to such 10 father. 11 (3) Upon hearing, if the court finds that a qualified person seeks 12 appointment, venue is proper, the required notices have been given, the 13 requirements of section 15­5­204, of this part Idaho Code, have been met, and 14 the welfare and best interests of the minor will be served by the requested 15 appointment, it shall make the appointment. In other cases the court may 16 dismiss the proceedings, or make any other disposition of the matter that 17 will best serve the interest of the minor. 18 (4) If necessary, the court may appoint a temporary guardian, with the 19 status of an ordinary guardian of a minor, but the authority of a temporary 20 guardian shall not last longer than six (6) months. 21 (5) The court shall appoint an attorney to represent the minor if the 22 court determines that the minor possesses sufficient maturity to direct the 23 attorney. If the court finds that the minor is not mature enough to direct 24 an attorney, the court shall appoint a guardian ad litem for the minor. The 25 court may decline to appoint an attorney or guardian ad litem if it finds in 26 writing that such appointment is not necessary to serve the best interests of 27 the minor or if the Idaho department of health and welfare has legal custody 28 of the child. 29 (6) Letters of guardianship must indicate whether the guardian was 30 appointed by will or by court order. 31 SECTION 3. That Section 15­5­213, Idaho Code, be, and the same is hereby 32 amended to read as follows: 33 15­5­213. DE FACTO CUSTODIAN. (1) "De facto custodian" means a person 34 who has either been appointed the de facto custodian pursuant to section 35 32­1703, Idaho Code, or if not so appointed, has been the primary caregiver 36 for, and primary financial supporter of, a child who, prior to the filing 37 of a petition for guardianship, has resided with the person for a period of 38 six (6) months or more if the child is under three (3) years of age and for a 39 period of one (1) year or more if the child is three (3) years of age or older. 40 (2) If a court determines by clear and convincing evidence that a person 41 meets the definition of a de facto custodian, and that recognition of the de 42 facto custodian is in the best interests of the child, the court shall give 43 the person the same standing that is given to each parent in proceedings for 44 appointment of a guardian of a minor. In determining whether recognition 45 of a de facto custodian is in the child’s best interests, the court shall 46 consider: 47 (a) Whether the child is currently residing with the person seeking 48 recognition as a de facto custodian such standing; and 49 6 (b) If the child is not currently residing with the person seeking 1 de facto custodian status such standing, the length of time since the 2 person served as the child’s primary caregiver and primary financial 3 supporter. 4