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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As introduced
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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
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RELATING TO DE FACTO CUSTODIANS; AMENDING TITLE 32, IDAHO CODE, BY THE
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ADDITION OF A NEW CHAPTER 17, TITLE 32, IDAHO CODE, TO PROVIDE A SHORT
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TITLE, TO PROVIDE A PURPOSE, TO PROVIDE FOR DE FACTO CUSTODIANS,
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TO PROVIDE FOR PETITIONS FOR CUSTODY AND MOTIONS TO INTERVENE BY
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PERSONS SEEKING DETERMINATIONS THAT THEY ARE DE FACTO CUSTODIANS, TO
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PROVIDE FOR NOTICE, TO REQUIRE STIPULATED FACTS OR FINDINGS OF FACT
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THAT A PERSON IS A DE FACTO CUSTODIAN, TO PROVIDE CERTAIN EVIDENTIARY
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STANDARDS, TO PROVIDE FOR THE APPLICATION OF SPECIFIED STANDARDS AND
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CONSIDERATIONS RELATING TO A DETERMINATION OF THE BEST INTERESTS OF
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THE CHILD, TO PROVIDE FOR DE FACTO CUSTODIAN ORDERS, TO PROVIDE FOR
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ACCESS TO CERTAIN RECORDS AND TO PROVIDE FOR TERMINATION OF CUSTODY
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ORDERS; AMENDING SECTION 155207, IDAHO CODE, TO REVISE PROVISIONS
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RELATING TO THE APPOINTMENT OF GUARDIANS OF MINORS, TO PROVIDE THAT
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DE FACTO CUSTODIANS MAY INITIATE PROCEEDINGS FOR THE APPOINTMENT OF A
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GUARDIAN, TO REVISE PROVISIONS RELATING TO NOTICE AND TO MAKE TECHNICAL
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CORRECTIONS; AND AMENDING SECTION 155213, IDAHO CODE, TO REVISE A
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DEFINITION OF "DE FACTO CUSTODIAN" AND TO REVISE PROVISIONS RELATING TO
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THE RECOGNITION OF DE FACTO CUSTODIANS RELATING TO STANDING IN CERTAIN
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PROCEEDINGS.
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Be It Enacted by the Legislature of the State of Idaho:
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SECTION 1. That Title 32, Idaho Code, be, and the same is hereby amended
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by the addition thereto of a NEW CHAPTER, to be known and designated as
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Chapter 17, Title 32, Idaho Code, and to read as follows:
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CHAPTER 17
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DE FACTO CUSTODIAN ACT
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321701.
SHORT TITLE. This chapter may be known and cited as the "De
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Facto Custodian Act."
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321702.
PURPOSE. The purpose of this act is to:
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(1)
Give constitutionally required deference to the decisions of fit
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parents in custody actions brought by third parties;
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(2)
Subject to such constitutionally required deference, meet the
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needs of children for caring and stable homes by providing a flexible method
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by which a third party who has cared for and supported a child may obtain
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legal and physical custody of the child where such custody is in the child’s
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best interests.
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321703.
DE
FACTO
CUSTODIANS.
(1)
"De
facto
custodian"
means
an
37
individual who:
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2
(a)
Is related to a child within the third degree of consanguinity or
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affinity; and
2
(b)
Either individually or together with a copetitioner has been the
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primary caretaker and primary financial supporter of such child for a
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period of:
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(i)
Six (6) months or more if the child is under three (3) years of
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age; or
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(ii) One (1) year or more if the child is three (3) years of age or
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older.
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(2)
Any period of time after the filing of a petition pursuant to this
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chapter shall not be included in determining whether the child has resided
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with the individual for the time period as provided in subsection (1) of this
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section.
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(3) An individual shall not be deemed a de facto custodian if a child has
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resided with the individual because:
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(a) The child was placed in the individual’s care through a court order
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or voluntary placement agreement under title 16, Idaho Code; or
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(b) The individual is or was cohabiting with, or is or was married to, a
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parent of the child.
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321704.
COMMENCEMENT OF PROCEEDINGS. (1) A child custody proceeding
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may be initiated in any court of this state with jurisdiction to determine
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child custody matters, by an individual:
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(a)
Filing a petition seeking a determination that he or she is a de
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facto custodian pursuant to section 321703, Idaho Code, and seeking
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custody of a child; or
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(b) Filing a motion seeking permissive intervention pursuant to rule 24
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of the Idaho rules of civil procedure, in a pending custody proceeding
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seeking a determination that he or she is a de facto custodian pursuant
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to section 321703, Idaho Code, and seeking custody of a child.
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(2)
A petition for custody or a motion to intervene based on the
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petitioners or intervenors alleged status as a de facto custodian, filed
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under this section, must state and allege:
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(a)
The name and address of the petitioner or intervenor and any prior
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or other name used by the petitioner or intervenor;
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(b)
The name of the respondent mother and father or guardian(s) and
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any prior or other name used by the respondent(s) and known to the
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petitioner or intervenor;
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(c) The name and date of birth of each child for whom custody is sought;
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(d) The relationship of the petitioner or intervenor to each child for
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whom custody is sought;
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(e)
The
basis
for
jurisdiction
asserted
by
the
petitioner
or
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intervenor;
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(f)
The current legal and physical custodial status of each child
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for whom custody is sought, whether a proceeding involving custody of
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the child, including a proceeding for an order or protection pursuant
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to section 396304, Idaho Code, is pending in a court in this state
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or elsewhere, and a list of all prior orders of custody, including
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temporary orders, if known to the petitioner or intervenor;
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(g) Whether either parent is a member of the armed services, if known to
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the petitioner or intervenor;
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(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
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caring for each child for whom custody is sought;
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(i) The financial support provided by the petitioner or intervenor for
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each child for whom custody is sought;
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(j)
Whether physical and/or legal custody should be granted to and/or
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shared with the respondent(s); and
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(k)
The basis upon which the petitioner or intervenor is claiming
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that it is in the best interests of the child that the petitioner or
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intervenor have custody of the child.
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(3)
The petition or motion must be verified by the petitioner or
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intervenor.
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(4) Written notice of a hearing on a petition or motion to intervene for
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custody of a child by a de facto custodian must be given to:
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(a)
The parent(s) of the child as defined in section 162002(11) and
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(12), Idaho Code; and
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(b) The guardian or legal custodian, if any, of the child; and
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(c) The child’s tribe pursuant to federal law, if the child is an Indian
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child as defined in the Indian child welfare act, 25 U.S.C. 1901, et seq.
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(5)
Written notice of a hearing on a petition for custody of a child
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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
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public assistance, the petitioner receives public assistance on behalf
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of the child or either parent receives child support enforcement services
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from the Idaho department of health and welfare or applies for such public
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assistance or child support enforcement services after a petition under this
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section is filed. Notice to the Idaho department of health and welfare must
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include a copy of the petition.
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(6)
In an action for custody of a child by a de facto custodian, the
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parties must stipulate to, or the court must find, facts establishing by
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clear and convincing evidence that the petitioner or intervenor is a de
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facto custodian pursuant to the requirements of section 321703, Idaho Code,
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before the court considers whether custody with the de facto custodian is in
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the best interests of the child.
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(7)
Once a court has found facts supporting the appointment of the
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petitioner or intervenor as the de facto custodian of a child, the petitioner
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or intervenor must prove by a preponderance of the evidence that it is in the
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best interests of the child to be in the custody of the de facto custodian.
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In determining the best interests of the child, the court shall apply the
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standards as provided in section 32717(1), Idaho Code.
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(8)
In
determining
whether
the
petitioner
or
intervenor
has
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established that it is in the best interests of the child to be in the custody
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of the de facto custodian, the court may also consider:
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(a) The circumstances under which the child was allowed to remain in the
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care of the de facto custodian, including whether the child was placed
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with the de facto custodian to allow the parent to seek work or to attend
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school;
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(b) Whether the child is currently residing with the de facto custodian
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and, if not, the length of time since the petitioner or intervenor last
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functioned as the child’s de facto custodian.
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321705.
NATURE OF DE FACTO CUSTODIAN ORDER ACCESS TO RECORDS
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TERMINATION OF DE FACTO CUSTODIANSHIP. (1) A court may enter an order
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granting a de facto custodian sole or joint legal and/or physical custody as
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defined in section 32717B(1), (2) and (3), Idaho Code, in the same manner as
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it would grant such custody to a parent.
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(2) An order granting custody to a de facto custodian is subject to the
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continuing jurisdiction of the court and is modifiable in the same manner
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as an order establishing parental custody pursuant to section 32717, Idaho
11
Code, or a similar provision.
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(3)
A de facto custodian who has been granted sole or joint legal
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custody of a child shall have access to records pertaining to the child who is
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the subject of the de facto custodianship to the same extent as a parent would
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have such access pursuant to an order of legal custody.
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(4) Any party to the proceeding granting custody to a de facto custodian
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may move for the termination of the custody order. A de facto custodian may
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move for permission to resign as de facto custodian.
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(a)
A party moving for termination of the de facto custodianchild
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relationship
must
show
by
a
preponderance
of
the
evidence
that
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termination of the relationship would be in the best interests of the
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child.
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(b)
A motion for termination or for resignation may, but need not,
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include a proposal for the continuing custody of the child.
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(c)
After
notice
and
hearing
on
a
motion
for
termination
or
26
resignation,
the court may terminate the custody of the de facto
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custodian and may make any further orders that may be appropriate in the
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best interests of the child.
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SECTION 2. That Section 155207, Idaho Code, be, and the same is hereby
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amended to read as follows:
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155207.
COURT APPOINTMENT OF GUARDIAN OF MINOR PROCEDURE. (1)
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Proceedings for the appointment of a guardian may be initiated by the
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following persons:
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(a) Aany relative of the minor,;
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(b)
Tthe minor if he is fourteen (14) or more years of age, a de facto
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custodian of the minor,;
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(c) Any person who comes within section 155213(1), Idaho Code; or
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(d) Aany person interested in the welfare of the minor.
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(2)
Notice of the time and place of hearing of a petition for the
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appointment of a guardian of a minor is to be given by the petitioner in the
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manner prescribed by section 151401, of this code Idaho Code, to:
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(a) The minor, if he is fourteen (14) or more years of age;
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(b)
The person who has had the principal care and custody of the minor
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during the sixty (60) days preceding the date of the petition;
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(c)
The de facto custodian of the minor, if any Any person who comes
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within section 155213(1), Idaho Code; and
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(d) Any living parent of the minor; provided however, that the court may
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waive notice to a living parent of the minor who is, or is alleged to be,
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the father of the minor if:
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(i)
The father was never married to the mother of the minor
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and has failed to register his paternity as provided in section
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161504(4), Idaho Code; or
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(ii)
The court has been shown to its satisfaction circumstances
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that would allow the entry of an order of termination of parental
8
rights pursuant to section 162005,
Idaho Code,
even though
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termination of parental rights is not being sought as to such
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father.
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(3)
Upon hearing, if the court finds that a qualified person seeks
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appointment, venue is proper, the required notices have been given, the
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requirements of section 155204, of this part Idaho Code, have been met, and
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the welfare and best interests of the minor will be served by the requested
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appointment, it shall make the appointment.
In other cases the court may
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dismiss the proceedings, or make any other disposition of the matter that
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will best serve the interest of the minor.
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(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
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guardian shall not last longer than six (6) months.
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(5)
The court shall appoint an attorney to represent the minor if the
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court determines that the minor possesses sufficient maturity to direct the
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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
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court may decline to appoint an attorney or guardian ad litem if it finds in
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writing that such appointment is not necessary to serve the best interests of
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the minor or if the Idaho department of health and welfare has legal custody
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of the child.
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(6)
Letters of guardianship must indicate whether the guardian was
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appointed by will or by court order.
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SECTION 3. That Section 155213, Idaho Code, be, and the same is hereby
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amended to read as follows:
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155213.
DE FACTO CUSTODIAN. (1) "De facto custodian" means a person
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who has either been appointed the de facto custodian pursuant to section
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321703, Idaho Code, or if not so appointed, has been the primary caregiver
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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
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six (6) months or more if the child is under three (3) years of age and for a
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period of one (1) year or more if the child is three (3) years of age or older.
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(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
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facto custodian is in the best interests of the child, the court shall give
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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
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of a de facto custodian is in the child’s best interests, the court shall
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consider:
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(a)
Whether the child is currently residing with the person seeking
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recognition as a de facto custodian such standing; and
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(b)
If the child is not currently residing with the person seeking
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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