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title-32•Title 32 — Domestic Relations
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
Minors are:
Males under eighteen (18) years of age.
Females under eighteen (18) years of age.
Provided, that any male or any female who has been married shall be competent to enter a contract, mortgage, deed of trust, bill of sale and conveyance, and sue or be sued thereon.
[(32-101) 1863, p. 515; R.S., sec. 2405; reen. R.C. & C.L., sec. 2601; C.S., sec. 4583; I.C.A., sec. 31-101; am. 1963, ch. 103, sec. 1, p. 323; am. 1972, ch. 117, sec. 1, p. 233.]
A child conceived, but not yet born, is to be deemed an existing person so far as may be necessary for its interests, in the event of its subsequent birth.
[(32-102) R.S., sec. 2406; reen. R.C. & C.L., sec. 2602; C.S., sec. 4584; I.C.A., sec. 31-102.]
In all cases other than those specified in the next two (2) sections the contract of a minor, if made whilst he is an unmarried minor may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards; or, in case of his death within that period, by his heirs or personal representatives.
[(32-103) R.S. sec. 2407; reen. R.C. & C.L., sec. 2603; C.S., sec. 4585; I.C.A., sec. 31-103; am. 1972, ch. 117, sec. 2, p. 233.]
A minor can not disaffirm a contract otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them.
[(32-104) R.S., sec. 2408; reen. R.C. & C.L., sec. 2604; C.S., sec. 4586; I.C.A., sec. 31-104.]
A minor can not disaffirm an obligation otherwise valid, entered into by him under the express authority or direction of a statute.
[(32-105) R.S., sec. 2409; R.C. & C.L., sec. 2605; C.S., sec. 4587; I.C.A., sec. 31-105.]
A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family.
[32-106, R.S., sec. 2410; reen. R.C. & C.L., sec. 2606; C.S., sec. 4588; I.C.A., sec. 31-106; am. 2010, ch. 235, sec. 10, p. 551.]
A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission.
[(32-107) R.S., sec. 2411; reen. R.C. & C.L., sec. 2607; C.S., sec. 4589; I.C.A., sec. 31-107.]
After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power or waive any right until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person had been discharged therefrom cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge.
[(32-108) R.S., sec. 2412; reen. R.C. & C.L., sec. 2608; C.S., sec. 4590; I.C.A., sec. 31-108.]
(1) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law. Marriage created by a mutual assumption of marital rights, duties or obligations shall not be recognized as a lawful marriage.
(2) The provisions of subsection (1) of this section requiring the issuance of a license and a solemnization shall not invalidate any marriage contract in effect prior to January 1, 1996, created by consenting parties through a mutual assumption of marital rights, duties or obligations.
[(32-201) 1876, p. 24, sec. 1; R.S., sec. 2420; reen. R.C. & C.L., sec. 2611; C.S., sec. 4591; I.C.A., sec. 31-201; am. 1995, ch. 104, sec. 3, p. 335.]
Any unmarried male of the age of eighteen (18) years or older, and any unmarried female of the age of eighteen (18) years or older, and not otherwise disqualified, are capable of consenting to and consummating marriage. A minor under eighteen (18) and not less than sixteen (16) years of age may not contract marriage with a person of the age of majority where there is an age difference of three (3) years or greater between them. No marriage license for a minor under the age of eighteen (18) and not less than sixteen (16) years of age shall be issued where there is such an age difference between the parties. Provided that if the male party to the contract is under the age of eighteen (18) and not less than sixteen (16) years of age, or if the female party to the contract is under the age of eighteen (18) and not less than sixteen (16) years of age, the license shall not be issued except upon the consent in writing duly acknowledged and sworn to by the father, mother, or guardian of any such person if there be either, and provided further, that no such license may be issued, if the male be under eighteen (18) and not less than sixteen (16) years of age and the female under eighteen (18) and not less than sixteen (16) years of age, unless each party to the contract submits to the county recorder his or her original birth certificate, or certified copy thereof or other proof of age acceptable to the county recorder. Where the female is under the age of sixteen (16), or the male is under the age of sixteen (16), the license shall not be issued.
[(32-202) 1863, p. 613, sec. 2; R.S., sec. 2421; am. 1888-1889, p. 40; reen. R.C. & C.L., sec. 2612; C.S., sec. 4592; am. 1921, ch. 221, sec. 1, p. 492; I.C.A. 31-202; am. 1943, ch. 50, sec. 1, p. 96; am. 1967, ch. 326, sec. 1, p. 955; am. 1969, ch. 90, sec. 1, p. 302; am. 1972, ch. 68, sec. 1, p. 138; am. 1981, ch. 295, sec. 1, p. 615; am. 2020, ch. 241, sec. 1, p. 707.]
Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half (1/2) as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.
[(32-205) 1866, p. 71, sec. 2; R.S., sec. 2424; reen. R.C. & C.L., sec. 2615; C.S., sec. 4595; I.C.A., sec. 31-205.]
All marriages between first cousins are prohibited.
[(32-206) 1866, p. 71, sec. 3; R.S., sec. 2425; reen. R.C. & C.L., sec. 2616; C.S., sec. 4596; am. 1921, ch. 115, sec. 1, p. 291; I.C.A., sec. 31-206; am. 1959, ch. 44, sec. 1, p. 89.]
A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning unless:
The former marriage of either party has been annulled or dissolved; or,
Such former husband or wife was absent and not known to such person to be living for the space of five (5) successive years immediately preceding, or was generally reputed, and was believed by such person, to be dead at the time such subsequent marriage was contracted. In either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal.
[(32-207) 1876, p. 24, sec. 6; R.S., sec. 2426; am. 1903, p. 10, sec. 1; reen. R.C. & C.L., sec. 2617; C.S., sec. 4597; I.C.A., sec. 31-207; am. 1943, ch. 25, sec. 1, p. 53.]
Neither party to a contract to marry is bound by a promise made in ignorance of the other’s want of personal chastity, and either is released therefrom by unchaste conduct on the part of the other, unless both parties participate therein.
[(32-208) R.S., sec. 2427; reen. R.C. & C.L., sec. 2618; C.S., sec. 4598; I.C.A., sec. 31-208.]
All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state.
[(32-209) 1866, p. 71, sec. 5; R.S., sec. 2428; reen. R.C. & C.L., sec. 2619; C.S., sec. 4599; I.C.A., sec. 31-209; am. 1996, ch. 331, sec. 1, p. 1126.]
All marriages shall be solemnized, authenticated and recorded as provided in this chapter. On and after January 1, 1996, any marriage contracted or entered into in violation of the provisions of this title shall be void.
[(32-301) 1876, p. 24, sec. 8; R.S., sec. 2425; reen. R.C. & C.L., sec. 2620; C.S., sec. 4600; I.C.A., sec. 31-301; am. 1995, ch. 104, sec. 4, p. 335.]
All persons herein authorized to solemnize marriages must first require the presentation of the marriage license and must ascertain and be assured of:
The identity of the parties.
Their real and full names and places of residence.
That they are of sufficient age to be capable of contracting marriage.
If either the male or the female is under the age of eighteen (18), the consent of the father, mother or guardian, if any such, is given, or that such underaged person has been previously but is not at the time married; and that the parties applying for the rites of marriage, and making such contract, have a legal right so to do.
[(32-302) 1876, p. 24, sec. 9; R.S., sec. 2430; am. 1888-1889, p. 44; reen. R.C. & C.L., sec. 2621; C.S., sec. 4601; I.C.A., sec. 31-302; am. 1995, ch. 104, sec. 5, p. 335.]
Marriage may be solemnized by any of the following Idaho officials: a current or retired justice of the supreme court, a current or retired court of appeals judge, a current or retired district judge, the current or a former governor, the current lieutenant governor, a current or retired magistrate of the district court, a current mayor or by any of the following: a current federal judge, a current tribal judge of an Idaho Indian tribe or other tribal official approved by an official act of an Idaho Indian tribe or priest or minister of the gospel of any denomination. To be a retired justice of the supreme court, court of appeals judge, district judge or magistrate judge of the district court, for the purpose of solemnizing marriages, a person shall have served in one (1) of those offices and shall be receiving a retirement benefit from either the judges retirement system or the public employee retirement system for service in the Idaho judiciary.
[(32-303) 1863, p. 613, sec. 4; R.S., sec. 2431; reen. R.C. & C.L., sec. 2622; C.S., sec. 4602; I.C.A., sec. 31-303; am. 1969, ch. 116, sec. 1, p. 374; am. 1983, ch. 18, sec. 3, p. 53; am. 1994, ch. 7, sec. 1, p. 11; am. 1997, ch. 196, sec. 1, p. 554; am. 2000, ch. 212, sec. 1, p. 572; am. 2008, ch. 46, sec. 1, p. 119.]
No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage that they take each other as husband and wife.
[(32-304) 1863, p. 614, sec. 6; R.S., sec. 2432; reen. R.C. & C.L., sec. 2623; C.S., sec. 4603; I.C.A., sec. 31-304.]
The person solemnizing the marriage may administer oaths and examine the parties and witnesses for the purpose of satisfying himself that the contracting parties are qualified under the requirements of this chapter.
[(32-305) 1876, p. 24, sec. 11; R.S., sec. 2433; reen. R.C. & C.L., sec. 2624; C.S., sec. 4604; I.C.A., sec. 31-305.]
When a marriage has been solemnized the person solemnizing the same must give to each of the parties, if required, a certificate thereof.
[(32-306) 1863, p. 614, sec. 7; R.S., sec. 2436; reen. R.C. & C.L., sec. 2625; C.S., sec. 4605; I.C.A., sec. 31-306.]
The person solemnizing a marriage is for such service entitled to receive from the parties married the sum of five dollars ($5.00), but may receive any other or greater sum voluntarily given by the parties to such marriage.
[(32-307) 1876, p. 24, sec. 16; R.S., sec. 2438; reen. R.C. & C.L., sec. 2626; C.S., sec. 4606; I.C.A., sec. 31-307.]
No marriage solemnized by any person professing to be a judge, justice, or minister, is deemed or regarded void, nor is the validity thereof to be in any way affected on account of any want of jurisdiction or authority: provided, it be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.
[(32-308) 1863, p. 615, sec. 13; R.S., sec. 2439; reen. R.C. & C.L., sec. 2627; C.S., sec. 4607; I.C.A., sec. 31-308.]
The original certificate, and record of marriage made by the judge, justice or minister, as prescribed in this chapter, and the record thereof by the recorder of the county, or a copy of such record duly certified by such recorder, must be received in all courts and places as presumptive evidence of the fact of such marriage.
[(32-309) 1863, p. 615, sec. 14; R.S., sec. 2440; am. 1888-1889, p. 40, sec. 1; am. R.C. & C.L., sec. 2628; C.S., sec. 4608; I.C.A., sec. 31-309.]
The county recorder of any county in this state shall have authority to issue marriage licenses to any parties applying for the same who may be entitled under the laws of this state to contract matrimony, authorizing the marriage of such parties, which licenses shall be substantially in the following form:
Know all men by this certificate that any regularly ordained minister of the gospel, authorized by the rites and usages of the church or denomination or religious body of which he may be a member, or any judge or competent officer to whom this may come, he not knowing of any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between…., of…. of the county of…., and the state of…., and…., of…. of the county of…., state of…., and to certify the same to said parties, or either of them, under his hand and seal, in his ministerial or official capacity, and thereupon he is required to return his certificate in form following as hereto annexed.
In testimony whereof I have hereunto set my hand and affixed the seal of said county, at…., this…. day of….,…..
[(32-401) 1895, p. 166, sec. 1; reen. 1899, p. 278, sec. 1; am. R.C. & C.L., sec. 2629; C.S., sec. 4609; I.C.A., sec. 31-401; am. 2002, ch. 32, sec. 11, p. 50; am. 2012, ch. 20, sec. 16, p. 69.]
The form of certificate annexed to said license, and therein referred to, shall be as follows:
I,…., a…., residing at…., in the county of…., in the state of Idaho, do certify that, in accordance with the authority on me conferred by the above license, I did on this…. day of…., in the year…., at…., in the county of…., in the state of Idaho, solemnize the rights of matrimony between…., of…., in the county of…., of the state of…., and…., of…., of the county of…., of the state of…., in the presence of…. and…..
Witness my hand and seal at the county aforesaid, this…. day of….,…..
In the presence of…..
….
The license and certificate, duly executed by the minister or officer who shall have solemnized the marriage authorized, shall be returned by him to the office of the recorder who issued the same, within thirty (30) days from the date of solemnizing the marriage therein authorized; and a neglect to make such return shall be deemed a misdemeanor, and the person whose duty it shall be to make such return, who shall neglect to make such return within the time above specified, shall, upon conviction thereof, be punished by a fine of not less than twenty dollars ($20.00) nor more than fifty dollars ($50.00) to be assessed by any court having jurisdiction.
[(32-402) 1895, p. 166, sec. 2; reen. 1899, p. 278, sec. 2; reen. R.C. & C.L., sec. 2630; C.S., sec. 4610; I.C.A., sec. 31-402; am. 2002, ch. 32, sec. 12, p. 51; am. 2012, ch. 20, sec. 17, p. 70.]
(1) Every county recorder who shall have personal knowledge of the competency of the parties for whose marriage a license is applied for, shall issue such license upon payment or tender to him of his legal fee therefor; and if such recorder does not know of his own knowledge that the parties are competent under the laws of the state to contract matrimony, he shall take the affidavit in writing of the person or persons applying for such license, and of other persons as he may see proper, and of any persons whose testimony may be offered; and if it appears from the affidavit so taken that the parties for whose marriage the license in question is demanded are legally competent to marry, the recorder shall issue such license, and the affidavits so taken shall be his warrant against any fine or forfeiture for issuing such license. Provided, however, that in the event either of the parties for whose marriage the license in question is applied for is under the age of eighteen (18) years, the recorder shall not issue such license except upon compliance with the consent and proof of age requirements set forth in section 32-202, Idaho Code.
(2) Every application for a marriage license shall include the social security numbers of the parties applying for the license.
(a) The requirement that an applicant provide a social security number shall apply only to applicants who have been assigned a social security number.
(b) An applicant who has not been assigned a social security number shall:
(i) Present written verification from the social security administration that the applicant has not been assigned a social security number; and
(ii) Submit a birth certificate, passport or other documentary evidence issued by an entity other than a state or the United States; and
(iii) Submit such proof as the department may require that the applicant is lawfully present in the United States.
[(32-403) 1895, p. 166, sec. 3; reen. 1899, p. 278, sec. 3; reen. R.C. & C.L., sec. 2631; C.S., sec. 4611; am. 1931, ch. 149, sec. 1, p. 251; I.C.A., sec. 31-403; am. 1933, ch. 8, sec. 1, p. 8; am. 1967, ch. 326, sec. 2, p. 955; am. 1972, ch. 49, sec. 1, p. 88; am. 1982, ch. 356, sec. 1, p. 904; am. 1998, ch. 248, sec. 1, p. 809; am. 1999, ch. 334, sec. 1, p. 909.]
The county recorder shall have power to administer all oaths required or provided for in this chapter, and if any person in any such affidavit shall wilfully and corruptly swear falsely to any material fact as to the competency of any person for whose marriage the license in question refers, or concerning the procuring or issuing of which such affidavit may be made, shall be guilty of perjury, and, upon conviction thereof, shall be punished as provided by statute in other cases of perjury.
[(32-404) 1895, p. 166, sec. 4; reen. 1899, p. 278, sec. 4; reen. R.C. & C.L., sec. 2632; C.S., sec. 4612; I.C.A., sec. 31-404.]
Any authorized minister or officer to whom any such license, duly issued, may come, not having personal knowledge of the incompetency of either party therein named to contract matrimony, may lawfully solemnize matrimony between them.
[(32-405) 1895, p. 166, sec. 5; reen. 1899, p. 278, sec. 5; reen. R.C. & C.L., sec. 2633; C.S., sec. 4613; I.C.A., sec. 31-405.]
If any such minister or officer shall presume to solemnize any marriage between parties without such a license, or with knowledge that either party is legally incompetent to contract matrimony as is provided for by the laws of this state, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00) nor more than $200.00 before any court having jurisdiction.
[(32-406) 1895, p. 166, sec. 6; reen. 1899, p. 278, sec. 6; reen. R.C. & C.L., sec. 2634; C.S., sec. 4614; I.C.A., sec. 31-406.]
The recorder shall record all such returns of marriage licenses in a book to be kept for that purpose, within one (1) month after receiving the same. If any recorder shall neglect or refuse to record within the said time any return to him made, he shall forfeit $100.00, to be recovered, with costs, by any person who will prosecute for the same.
[(32-407) 1895, p. 166, sec. 7; reen. 1899, p. 278, sec. 7; reen. R.C. & C.L., sec. 2635; C.S., sec. 4615; I.C.A., sec. 31-407.]
The recorder of each county of this state shall be entitled to a fee as provided by section 31-3205, Idaho Code, for each license issued, which fee he shall demand and receive from the person applying for the same, and he may refuse to issue any such license until such fee is paid to him. Said fee shall include the payment for the service of taking affidavit, filing affidavit and recording the license upon its return from the minister or officer solemnizing the marriage for which it was issued.
[(32-408) 1895, p. 166, sec. 8; reen. 1899, p. 278, sec. 8; reen. R.C., sec. 2636; am. 1911, ch. 137, sec. 1, p. 430; reen. C.L., sec. 2636; C.S., sec. 4616; I.C.A., sec. 31-408; am. 1965, ch. 133, sec. 1, p. 261; am. 1984, ch. 29, sec. 2, p. 51.]
The books of marriages and copies of entries therein, certified by the recorder under his official seal, shall be evidence in all courts.
[(32-409) 1866, p. 71, sec. 10; 1895, p. 166, sec. 9; reen. 1899, p. 278, sec. 9; reen. R.C. & C.L., sec. 2637; C.S., sec. 4617; I.C.A., sec. 31-409.]
If any person, authorized to solemnize marriage, shall wilfully make a false return of any marriage or pretended marriage to the recorder; or, if the recorder shall wilfully record a false return of any marriage, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than $100.00, and by imprisonment for not less than three (3) months.
[(32-410) 1895, p. 166, sec. 10; reen. 1899, p. 278, sec. 10; reen. R.C. & C.L., sec. 2638; C.S., sec. 4618; I.C.A., sec. 31-410.]
All fines and penalties accruing under the provisions of this chapter shall be paid into the county treasury for the use of the common schools in the county where the offense was committed.
[(32-411) 1895, p. 166, sec. 11; reen. 1899, p. 278, sec. 11; reen. R.C. & C.L., sec. 2639; C.S., sec. 4619; I.C.A., sec. 31-411.]
Any person who misrepresents any fact required to be stated on the certificate form or other form required by this act, or any licensing officer who issues a marriage license without having received the certificate forms or an order from the court as provided by this chapter, or who has reason to believe that any of the facts thereon have been so misrepresented, and shall nevertheless issue a marriage license, or any person who otherwise fails to comply with the provisions of this act shall be guilty of a misdemeanor.
[(32-415) 1943, ch. 42, sec. 6, p. 83; am. and redesignated 1979, ch. 57, sec. 5, p. 151.]
A marriage may be annulled for any of the following causes, existing at the time of the marriage:
That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or persons having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabits with the other as husband or wife;
That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force;
That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife;
That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife;
That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife;
That either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable.
[(32-501) 1874, p. 639, sec. 4; R.S., sec. 2450; reen. R.C. & C.L., sec. 2640; C.S., sec. 4620; I.C.A., sec. 31-501.]
An action to obtain a decree of nullity of marriage, for causes mentioned in the preceding section, must be commenced within the periods and by the parties as follows:
For causes mentioned in subdivision one; by the party to the marriage who was married under the age of legal consent, within four (4) years after arriving at the age of consent; or by a parent, guardian, or other person having charge of such nonaged male or female, at any time before such married minor has arrived at the age of legal consent;
For causes mentioned in subdivision two; by either party during the life of the other, or by such former husband or wife;
For causes mentioned in subdivision three; by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party;
For causes mentioned in subdivision four; by the party injured, within four (4) years after the discovery of the facts constituting the fraud;
For causes mentioned in subdivision five; by the injured party, within four (4) years after the marriage;
For causes mentioned in subdivision six; by the injured party, within four (4) years after the marriage.
[(32-502) R.S., sec. 2451; reen. R.C. & C.L., sec. 2641; C.S., sec. 4621; I.C.A., sec. 31-502.]
When a marriage is annulled for any reason, other than for fraud in that the wife is pregnant with the child of a man other than the husband, children begotten before judgment are legitimate and succeed to the state of both parents. The court may at the time of granting the annulment or at any future time, make necessary orders for the support of said child or children as the circumstances and surroundings of the parents may require.
[(32-503) R.S., sec. 2452; reen. R.C. & C.L., sec. 2642; C.S., sec. 4622; I.C.A., sec. 31-503; am. 1955, ch. 261, sec. 1, p. 629.]
The court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party.
[(32-504) R.S., sec. 2453; reen. R.C. & C.L., sec. 2643; C.S., sec. 4623; I.C.A., sec. 31-504.]
A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.
[(32-505) R.S., sec. 2454; reen. R.C. & C.L., sec. 2644; C.S., sec. 4624; I.C.A., sec. 31-505.]
Marriage is dissolved only:
By the death of one of the parties; or,
By the judgment of a court of competent jurisdiction decreeing a divorce of the parties.
[(32-601) R.S., sec. 2455; reen. R.C. & C.L., sec. 2645; C.S., sec. 4625; I.C.A., sec. 31-601.]
The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons.
[(32-602) R.S., sec. 2456; reen. R.C. & C.L., sec. 2646; C.S., sec. 4626; I.C.A., sec. 31-602.]
Divorces may be granted for any of the following causes:
Adultery.
Extreme cruelty.
Wilful desertion.
Wilful neglect.
Habitual intemperance.
Conviction of felony.
When either the husband or wife has become permanently insane, as provided in sections 32-801 to 32-805, inclusive.
Irreconcilable differences.
[(32-603) 1863, p. 616, sec. 22; R.S., sec. 2457; am. 1899, p. 232, sec. 1; 1903, p. 332, sec. 1; compiled and reen. R.C. & C.L., sec. 2647; C.S., sec. 4627; I.C.A., sec. 31-603; am. 1971, ch. 20, sec. 1, p. 33.]
Adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.
[(32-604) R.S., sec. 2458; reen. R.C. & C.L., sec. 2648; C.S., sec. 4628; I.C.A., sec. 31-604.]
Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage.
[(32-605) R.S., sec. 2459; reen. R.C. & C.L., sec. 2649; C.S., sec. 4629; I.C.A., sec. 31-605.]
Wilful desertion is the voluntary separation of one of the married parties from the other with intent to desert.
[(32-606) R.S., sec. 2460; reen. R.C. & C.L., sec. 2650; C.S., sec. 4630; I.C.A., sec. 31-606.]
Wilful neglect is the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so, or it is the failure to do so by reason of idleness, profligacy or dissipation.
[(32-607) R.S., sec. 2461; reen. R.C. & C.L., sec. 2651; C.S., sec. 4631; I.C.A., sec. 31-607.]
Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party.
[(32-608) R.S., sec. 2462; reen. R.C. & C.L., sec. 2652; C.S., sec. 4632; I.C.A., sec. 31-608.]
Wilful desertion, wilful neglect or habitual intemperance must continue for one (1) year before either is a ground for divorce.
[(32-609) R.S., sec. 2463; reen. R.C. & C.L., sec. 2653; C.S., sec. 4633; I.C.A., sec. 31-609.]
When married persons have heretofore lived or shall hereafter live separate and apart for a period of five (5) years or more without cohabitation, either party to the marriage contract may sue for a divorce which shall be granted on proof of the continuous living separate and apart without cohabitation of the spouses during said period of five (5) years or more.
[(32-610) I.C.A., sec. 31-609-A, as added by 1945, ch. 125, sec. 1, p. 191.]
Divorces must be denied upon showing:
Collusion;
Condonation;
Recrimination; or,
Limitation and lapse of time.
[(32-611) R.S., sec. 2464; reen. R.C. & C.L., sec. 2654; C.S., sec. 4634; I.C.A., sec. 31-610.]
Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce for the purpose of enabling the other to obtain a divorce, and is a bar to an action for such acts.
[(32-612) R.S., sec. 2465; reen. R.C. & C.L., sec. 2655; C.S., sec. 4635; I.C.A., sec. 31-611.]
Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff’s cause of divorce.
[(32-613) R.S., sec. 2466; reen. R.C. & C.L., sec. 2656; C.S., sec. 4636; I.C.A., sec. 31-612.]
Condonation of a cause of divorce shown in the answer as a recriminatory defense, is a bar to such defense when the condonee has fully performed the marital duties, and is without reproach since the condonation, or if two (2) years or more have elapsed after the condonation.
[(32-614) R.S., sec. 2467; reen. R.C. & C.L., sec. 2657; C.S., sec. 4637; I.C.A., sec. 31-613.]
A divorce must be denied:
When the cause is adultery and the action is not commenced within two (2) years after the commission of the act of adultery, or after its discovery by the injured party.
When the cause is conviction of felony, and the action is not commenced before the expiration of one (1) year after a pardon or the termination of the period of sentence.
In all other cases when there is an unreasonable lapse of time before the commencement of the action.
[(32-615) R.S., sec. 2468; reen. R.C. & C.L., sec. 2658; C.S., sec. 4638; I.C.A., sec. 31-614.]
Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.
[I.C., sec. 32-616, as added by 1971, ch. 20, sec. 2, p. 33.]
A divorce must not be granted unless the plaintiff has been a resident of the state for six (6) full weeks next preceding the commencement of the action.
[(32-701) 1874, p. 639, sec. 3; R.S., sec. 2469; reen. R.C., sec. 2659; am. 1917, ch. 125, sec. 1, p. 414; reen. C.L., sec. 2659; C.S., sec. 4639; am. 1931, ch. 77, sec. 1, p. 132; I.C.A., sec. 31-701; am. 1937, ch. 94, sec. 1, p. 131.]
In actions for divorce the presumption of law that the domicil of the husband is the domicil of the wife, does not apply. After separation each may have a separate domicil, depending for proof upon actual residence, and not upon legal presumptions.
[(32-702) R.S., sec. 2470; reen. R.C. & C.L., sec. 2660; C.S., sec. 4640; I.C.A., sec. 31-702.]
A divorce may be granted upon the default of the defendant, upon the uncorroborated statement, admission or testimony of the plaintiff.
[(32-703) 1874, p. 639, sec. 8; R.S., sec. 2471; reen. R.C. & C.L., sec. 2661; C.S., sec. 4641; I.C.A., sec. 31-703; am. 1943, ch. 132, sec. 1, p. 269; am. 1983, ch. 30, sec. 1, p. 80.]
While an action for divorce is pending, the court may, in its discretion, on the motion of either party and upon showing made in conformity with section 32-705 or section 32-706, Idaho Code, whichever be appropriate, order the payment of temporary maintenance of either spouse by the other or temporary support of a child of the marriage, in amounts and on terms just and proper under the circumstances.
The court may, in its discretion, on the motion of either party enter a decree of legal separation, providing for custody of children, division of property, payment of debts, payment of child support, and payment of spousal support as set forth in the statutes governing domestic relations.
The court may from time to time after considering the financial resources of both parties and the factors set forth in section 32-705, Idaho Code, order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this act and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
The court may appoint an attorney or guardian ad litem to represent the interests of a minor or dependent child with respect to his or her support, custody, and visitation, but only in those instances where the court deems legal representation or other assistance is necessary beyond any court ordered and court related services previously authorized for the particular case. The court shall enter an order for costs, fees, and disbursements in favor of the child’s attorney or guardian ad litem. The order shall be made against either or both parents, except, if both parties are indigent, the costs, fees, and disbursements shall be borne by the county in which the action is pending.
[(32-704) 1874, p. 639, sec. 7; R.S., sec. 2472; reen. R.C. & C.L., sec. 2662; C.S., sec. 4642; I.C.A., sec. 31-704; am. 1980, ch. 378, sec. 2, p. 962; am. 1994, ch. 352, sec. 1, p. 1112; am. 2024, ch. 233, sec. 1, p. 815.]
(a) Lacks sufficient property to provide for his or her reasonable needs; and
(b) Is unable to support himself or herself through employment.
(a) The financial resources of the spouse seeking maintenance, including the marital property apportioned to said spouse, and said spouse’s ability to meet his or her needs independently;
(b) The time necessary to acquire sufficient education and training to enable the spouse seeking maintenance to find employment;
(c) The duration of the marriage;
(d) The age and the physical and emotional condition of the spouse seeking maintenance;
(e) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance;
(f) The tax consequences to each spouse;
(g) The fault of either party.
[32-705, added 1980, ch. 378, sec. 4, p. 963; am. 1990, ch. 336, sec. 1, p. 917.]
(1) In a proceeding for divorce or child support, the court may order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his or her support and education until the child is eighteen (18) years of age, without regard to marital misconduct, after considering all relevant factors which may include:
(a) The financial resources of the child;
(b) The financial resources, needs, and obligations of both the custodial and noncustodial parents which ordinarily shall not include a parent’s community property interest in the financial resources or obligations of a spouse who is not a parent of the child, unless compelling reasons exist;
(c) The standard of living the child enjoyed during the marriage;
(d) The physical and emotional condition and needs of the child and his or her educational needs;
(e) The availability of medical coverage for the child at reasonable cost as defined in section 32-1214B, Idaho Code; and
(f) The actual tax benefit recognized by the party claiming the federal child dependency exemption.
(2) If the child continues his high school education subsequent to reaching the age of eighteen (18) years, the court may, in its discretion, and after considering all relevant factors which include those set forth in subsection (1) of this section, order the continuation of support payments until the child discontinues his high school education or reaches the age of nineteen (19) years, whichever is sooner.
(3) All child support orders shall notify the obligor that the order will be enforced by income withholding pursuant to chapter 12, title 32, Idaho Code. Failure to include this provision does not affect the validity of the support order. The court shall require that the social security numbers of both the obligor and obligee be included in the order or decree.
(4) In a proceeding for the support of a child or a minor parent, the court may order the parent(s) of each minor parent to pay an amount reasonable or necessary for the support and education of the child born to the minor parent(s) until the minor parent is eighteen (18) years of age, after considering all relevant factors which may include:
(a) The financial resources of the child;
(b) The financial resources of the minor parent;
(c) The financial resources, needs and obligations of the parent of the minor parent;
(d) The physical and emotional condition and needs of the child and his or her educational needs; and
(e) The availability of medical coverage for the child at reasonable cost as defined in section 32-1214B, Idaho Code.
(5) The legislature hereby authorizes and encourages the supreme court of the state of Idaho to adopt and to periodically review for modification guidelines that utilize and implement the factors set forth in subsections (1) through (4) of this section to create a uniform procedure for reaching fair and adequate child support awards. There shall be a rebuttable presumption that the amount of the award which would result from the application of the guidelines is the amount of child support to be awarded, unless evidence is presented in a particular case that indicates that an application of the guidelines would be unjust or inappropriate. If the court determines that circumstances exist to permit a departure from the guidelines, the judge making the determination shall make a written or specific finding on the record that the application of the guidelines would be unjust or inappropriate in the particular case before the court. When adopting guidelines, the supreme court shall provide that in a proceeding to modify an existing award, children of the party requesting the modification who are born or adopted after the entry of the existing order shall not be considered.
(6) If the court awards one (1) parent the right to claim tax benefits associated with his child or children, the court order need not list every applicable tax benefit. The parent who was awarded the tax benefits for the child or children shall attach a copy of the court order to his income tax return. The state tax commission shall recognize the award of tax benefits with respect to the child or children as applying to the child tax credit under section 63-3029L, Idaho Code, the food tax credit under section 63-3024A, Idaho Code, and any and all other state and federal tax deductions, exemptions, and credits for which the parent qualifies, unless the court order specifies otherwise.
[32-706, added 1980, ch. 378, sec. 5, p. 963; am. 1986, ch. 222, sec. 4, p. 604; am. 1989, ch. 411, sec. 1, p. 1003; am. 1990, ch. 410, sec. 1, p. 1137; am. 1996, ch. 430, sec. 1, p. 1463; am. 1998, ch. 292, sec. 5, p. 932; am. 2000, ch. 107, sec. 1, p. 236; am. 2000, ch. 412, sec. 1, p. 1305; am. 2008, ch. 328, sec. 1, p. 899; am. 2020, ch. 271, sec. 1, p. 792.]
The court may require reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case.
[(32-707) R.S., sec. 2475; reen. R.C. & C.L., sec. 2665; C.S., sec. 4645; I.C.A., sec. 31-707; am. 1980, ch. 378, sec. 6, p. 964.]
When implementing and construing sections 32-705 through 32-707, Idaho Code, the court must resort, first, to the community property, then to the separate property of either party.
[(32-708) R.S., sec. 2476; reen. R.C. & C.L., sec. 2666; C.S., sec. 4646; I.C.A., sec. 31-708; am. 1980, ch. 378, sec. 7, p. 964.]
(1) The provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of a substantial and material change of circumstances.
(2) The court may allow a credit against child support arrearages for periods of time exceeding one hundred twenty (120) days during which the minor children have lived primarily with the obligated parent with the knowledge and consent of the custodial parent.
[32-709, added 1980, ch. 378, sec. 8, p. 964; am. 2003, ch. 246, sec. 1, p. 638.]
A. Effective October 1, 1998, all payments for child support ordered pursuant to any decree of divorce or other order for support shall be paid, unless otherwise ordered by the court, to the department of health and welfare. The department shall keep a record of payments made under said order or decree and shall, within two (2) business days of receipt of such payment, transmit said payments to the person or persons entitled thereto by virtue of said order or decree. Whenever a child is in the physical care of a person or entity other than its parents and the department of health and welfare is providing child support services under title IV-D of the social security act, the department may, after written notice to the obligor and obligee and the opportunity for hearing set forth in paragraphs 1. through 3. of this subsection transmit payments under an order of support for said child to the person or entity who has physical care of said child, without further order of the court, whether or not such person or entity is the obligee under the support order.
The department shall send notice of its intent to transmit child support payments to the person or entity who has physical care of the child by registered or certified mail to the last known address of the obligor and obligee under an order for support of the child.
The obligor and obligee may file a written objection to the transmittal of child support payments with a court of proper jurisdiction within fourteen (14) days from the date the notice of transmittal is mailed. A copy of the written objection shall be sent to the department of health and welfare.
After hearing in a court of proper jurisdiction and entry of an order, or if no written objection is made by the obligor or obligee, the department may transmit the payments under an order of support for the child to the person or entity who has physical care of the child.
B. Any person entitled to receive child support payments pursuant to any decree of divorce or other order for support may make application for enforcement services to the department of health and welfare as provided in section 56-203A, Idaho Code, when child support is not being paid as ordered.
C. All child support orders shall provide that the order will be enforced by income withholding pursuant to chapter 12, title 32, Idaho Code. Failure to include this provision does not affect the validity of the support order or decree. The court shall require that the social security numbers of both the obligor and obligee be included in the order or decree.
[I.C., sec. 32-710A, as added by S.L. 1967, ch. 94, sec. 1, p. 202; am. 1969, ch. 237, sec. 1, p. 750; am. 1986, ch. 222, sec. 5, p. 593; am. 1990, ch. 90, sec. 1, p. 189; am. 1995, ch. 320, sec. 1, p. 1083; am. 1998, ch. 292, sec. 6, p. 933.]
In case of divorce by the decree of a court of competent jurisdiction, the community property and the homestead must be assigned as follows:
(a) Unless there are compelling reasons otherwise, there shall be a substantially equal division in value, considering debts, between the spouses.
(b) Factors which may bear upon whether a division shall be equal, or the manner of division, include, but are not limited to:
(1) Duration of the marriage;
(2) Any antenuptial agreement of the parties; provided, however, that the court shall have no authority to amend or rescind any such agreement;
(3) The age, health, occupation, amount and source of income, vocational skills, employability, and liabilities of each spouse;
(4) The needs of each spouse;
(5) Whether the apportionment is in lieu of or in addition to maintenance;
(6) The present and potential earning capability of each party; and
(7) Retirement benefits, including, but not limited to, social security, civil service, military and railroad retirement benefits.
If a homestead has been selected from the community property, it may be assigned to either party, either absolutely, provided such assignment is considered in distribution of the community property, or for a limited period, subject in the latter case to the future disposition of the court; or it may be divided or be sold and the proceeds divided.
If a homestead has been selected from the separate property of either, it must be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the other spouse.
[(32-712) 1874, p. 634, sec. 12; R.S., sec. 2480; reen. R.C. & C.L., sec. 2670; C.S., sec. 4650; I.C.A., sec. 31-712; am. 1965, ch. 63, sec. 1, p. 98; am. 1980, ch. 378, sec. 9, p. 964.]
The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead as in this chapter provided, and, whenever necessary for that purpose, may order a partition or sale of the property and a division or other disposition of the proceeds.
[(32-713) 1874, p. 634, sec. 12; R.S., sec. 2481; reen. R.C. & C.L., sec. 2671; C.S., sec. 4651; I.C.A., sec. 31-713.]
The disposition of the community property, and of the homestead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.
[(32-714) 1874, p. 634, sec. 12; R.S., sec. 2482; reen. R.C. & C.L., sec. 2672; C.S., sec. 4652; I.C.A., sec. 31-714.]
Exclusive original jurisdiction of all actions and proceedings under this chapter is in the district court, but a judge thereof at chambers may make all necessary orders to carry out the provisions of this chapter. The powers and jurisdiction granted district judges shall apply to proceedings under this chapter.
[(32-715) 1874, p. 639, sec. 1; R.S., sec. 2483; reen. R.C. & C.L., sec. 2673; C.S., sec. 4653; I.C.A., sec. 31-715; am. 1937, ch. 210, sec. 1, p. 357; am. 2022, ch. 25, sec. 1, p. 71.]
No hearing on the merits upon grounds for divorce shall be held in any action for divorce, and no final decree of a court of competent jurisdiction shall be entered in any such case, except as hereinafter provided, until at least twenty-one (21) days after the commencement of the action and service of process. During such period of twenty-one (21) days, or at any time subsequent and prior to entry of final decree therein, the court, upon application of one (1) of the parties, may require a conference of the parties with a person or persons of his choosing, or persons selected by the court, in order to determine whether or not a reconciliation between the parties is practicable; provided, however, that nothing herein shall prevent the court from making such interim orders as may be just and equitable; provided, further, that nothing herein shall prevent the court from proceeding to try the matter on the merits and enter a final decree of divorce upon the agreement of both parties and with both parties present in person or represented by counsel at such trial.
In any action of divorce where grounds for divorce have been established, if the court finds that attempts at reconciliation are practicable and to the best interest of the family, the court may stay the proceedings for a period not to exceed ninety (90) days where there are minor children in the family.
The reconciliation procedures herein provided shall not be construed as a condonation on the part of either spouse of acts that may constitute grounds for divorce.
[I.C., sec. 32-716, as added by 1971, ch. 21, sec. 1, p. 34; am. 2019, ch. 28, sec. 1, p. 76.]
(1) In an action for divorce the court may, before and after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children. The court shall consider all relevant factors which may include:
(a) The wishes of the child’s parent or parents as to his or her custody;
(b) The wishes of the child as to his or her custodian;
(c) The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings;
(d) The child’s adjustment to his or her home, school, and community;
(e) The character and circumstances of all individuals involved;
(f) The need to promote continuity and stability in the life of the child; and
(g) Domestic violence as defined in section 39-6303, Idaho Code, whether or not in the presence of the child.
(2) If the parent has a disability as defined in this section, the parent shall have the right to provide evidence and information regarding the manner in which the use of adaptive equipment or supportive services will enable the parent to carry out the responsibilities of parenting the child. The court shall advise the parent of such right. Evaluations of parental fitness shall take into account the use of adaptive equipment and supportive services for parents with disabilities and shall be conducted by, or with the assistance of, a person who has expertise concerning such equipment and services. Nothing in this section shall be construed to create any new or additional obligations on state or local governments to purchase or provide adaptive equipment or supportive services for parents with disabilities.
(3) In any case where the child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interests of the child.
(4) As used in this chapter:
(a) "Adaptive equipment" means any piece of equipment or any item that is used to increase, maintain or improve the parenting capabilities of a parent with a disability.
(b) "Disability" means, with respect to an individual, any mental or physical impairment which substantially limits one (1) or more major life activities of the individual including, but not limited to, self-care, manual tasks, walking, seeing, hearing, speaking, learning or working, or a record of such an impairment, or being regarded as having such an impairment. Disability shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behavior disorders, substance use disorders, compulsive gambling, kleptomania or pyromania. Sexual preference or orientation is not considered an impairment or disability. Whether an impairment substantially limits a major life activity shall be determined without consideration of the effect of corrective or mitigating measures used to reduce the effects of the impairment.
(c) "Supportive services" means services which assist a parent with a disability to compensate for those aspects of their disability which affect their ability to care for their child and which will enable them to discharge their parental responsibilities. The term includes specialized or adapted training, evaluations, or assistance with effective use of adaptive equipment, and accommodations which allow a parent with a disability to benefit from other services, such as braille texts or sign language interpreters.
(5) Nothing in this chapter shall be construed to allow discrimination on the basis of disability. In any case where the disability of a parent is found by the court to be relevant to an award of custody of a child, the court shall make specific findings concerning the disability and what effect, if any, the court finds the disability has on the best interests of the child.
(6) With reference to this section, when an active member of the Idaho national guard has been ordered or called to duty as defined in section 46-409, Idaho Code, or when a member of the military reserve is ordered to active federal service under title 10, United States Code, such military service thereunder shall not be a substantial or material and permanent change in circumstance to modify by reducing the member’s previously decreed child custody and visitation privileges.
[(32-717) 1874, p. 639, sec. 7; R.S., sec. 2473; reen. R.C. & C.L., sec. 2663; C.S., sec. 4643; I.C.A., sec. 31-705; am. and redesignated 1980, ch. 378, sec. 3, p. 962; am. 1992, ch. 228, sec. 1, p. 678; am. 1995, ch. 128, sec. 1, p. 561; am. 2002, ch. 232, sec. 1, p. 664; am. 2003, ch. 250, sec. 1, p. 648; am. 2007, ch. 108, sec. 1, p. 313.]
Notwithstanding any other provisions of law, access to records and information pertaining to a minor child including, but not limited to, medical, dental, health, and school or educational records, shall not be denied to a parent because the parent is not the child’s custodial parent. However, information concerning the minor child’s address shall be deleted from such records to a parent, if the custodial parent has advised the records custodian in writing to do so.
[32-717A, added 1982, ch. 311, sec. 2, p. 776; am. 1998, ch. 151, sec. 1, p. 522.]
(1) "Joint custody" means an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents. The court may award either joint physical custody or joint legal custody or both as between the parents or parties as the court determines is for the best interests of the minor child or children. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.
(2) "Joint physical custody" means an order awarding each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.
Joint physical custody shall be shared by the parents in such a way to assure the child a frequent and continuing contact with both parents but does not necessarily mean the child’s time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent.
The actual amount of time with each parent shall be determined by the court.
(3) "Joint legal custody" means a judicial determination that the parents or parties are required to share the decision-making rights, responsibilities and authority relating to the health, education and general welfare of a child or children.
(4) Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children.
(5) There shall be a presumption that joint custody is not in the best interests of a minor child if one (1) of the parents is found by the court to be a habitual perpetrator of domestic violence as defined in section 39-6303, Idaho Code.
[32-717B, added 1982, ch. 311, sec. 3, p. 776; am. 1994, ch. 340, sec. 2, p. 1076.]
When, in any divorce proceeding or upon request for modification of a divorce decree, an allegation of child abuse or child sexual abuse is made, implicating either party, the court shall order that an investigation be conducted by the department of health and welfare. A final award of custody or visitation may not be rendered until a report on that investigation is received by the court. That investigation shall be conducted by the department within thirty (30) days of the court’s notice and request for investigation.
[32-717C, added 1995, ch. 275, sec. 1, p. 923.]
(1) Provided that a court has entered a judgment or an order establishing child custody in a case, the court may order the appointment of a parenting coordinator to perform such duties as authorized by the court, consistent with any controlling judgment or order of a court relating to the child or children of the parties, and as set forth within the order of appointment. The court shall direct the parenting coordinator to provide a status report to the court at a time and in a manner as determined by the court. Provided however, that the court shall require the parenting coordinator to provide a minimum of one (1) status report to the court at least once every six (6) months. At any time during the period of appointment, the court, on its own initiative, or upon request of the parenting coordinator or either party, may hold a status conference to review the continued appointment of the coordinator and/or the status of the case.
(2) Qualification, selection, appointment, termination of appointment, and prescribed duties and responsibilities of a parenting coordinator shall be based upon standards and criteria as adopted by the Idaho supreme court. Provided however, that standards and criteria for qualification and selection of a parenting coordinator, as adopted by the Idaho supreme court, shall not apply to a parenting coordinator selected and agreed to by the parties. In addition, as a condition of any appointment, a parenting coordinator shall:
(a) Be neutral to the dispute and to the parties;
(b) Be either selected pursuant to agreement of the parties or appointed by the court; and
(c) Prior to any appointment, and at their own cost, have submitted to a criminal history check through any law enforcement office in the state providing such service. The criminal history check shall include a statewide criminal identification bureau, the federal bureau of investigation criminal history check, the national crime information center and the statewide sex offender register. A record of all background checks shall be maintained in the office of the supreme court of the state of Idaho with a copy going to the applicant and shall be available for review by the court considering a parenting coordinator appointment prior to an appointment.
(3) In addition to those duties as authorized by the court pursuant to the order of appointment, the responsibilities of a parenting coordinator shall include collaborative dispute resolution in parenting. The parenting coordinator shall act to empower the parties in resuming parenting controls and decision-making, and minimize the degree of conflict between the parties for the best interests of the children.
(4) The court shall allocate the fees and costs of the parenting coordinator between the parties and may enter an order against either or both parties for the reasonable costs, fees and disbursements of the parenting coordinator. Any dispute regarding payment of the fees and costs of the parenting coordinator shall be subject to review by the court upon request of the parenting coordinator or either party.
(5) The court may award attorney’s fees and costs to the prevailing party on a motion to set aside or modify the decision of a parenting coordinator.
[32-717D, added 2002, ch. 108, sec. 1, p. 306; am. 2012, ch. 45, sec. 1, p. 139; am. 2014, ch. 163, sec. 1, p. 458.]
In cases in which a court has ordered that contact between a person and one (1) or more children shall take place only in the presence of an approved provider, or where the court has ordered supervised exchanges or transfers of one (1) or more children, the court may appoint an individual or entity as a supervised access provider to provide such supervised access or to facilitate such exchanges or transfers. The qualifications and duties of supervised access providers shall be as specified in rules adopted by the supreme court. A supervised access provider who is paid for providing supervised access services shall, prior to acting in such capacity and at his or her own cost, submit to a fingerprint-based criminal history check through any law enforcement office in the state providing such service. The criminal history check shall include a statewide criminal identification bureau check, federal bureau of investigation criminal history check, child abuse registry check, adult protection registry check and statewide sex offender registry check. A record of all background checks shall be maintained in the office of the supreme court of the state of Idaho.
[32-717E, added 2007, ch. 106, sec. 1, p. 310.]
Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification proceeding is vexatious and constitutes harassment.
[32-718, added 1980, ch. 378, sec. 10, p. 965.]
The district court may grant reasonable visitation rights to grandparents or great-grandparents upon a proper showing that the visitation would be in the best interests of the child.
[32-719, added 1994, ch. 407, sec. 1, p. 1278.]
(1) In the event a petition for modification of a child custody order is filed during the time that the court action may be subject to the servicemembers civil relief act, 50 U.S.C. App. section 501 et seq., because one (1) of the parties is a servicemember as defined in said act, the court shall determine if said act applies to the action pursuant to the jurisdiction provisions of the act. If the court determines that the act does apply, the court shall thereafter act in compliance with the terms of said act and, in addition, the following shall apply to the extent not in violation of said act:
(a) If the court determines that modification is in the best interest of the child pursuant to the provisions of section 32-717, Idaho Code, and the party who is a servicemember is deployed, the court may only enter an order or decree temporarily modifying the existing child custody order during the period of deployment, and upon completion by the servicemember of the period of deployment, the order or decree shall expire sixty (60) days after notification to the court, and to all persons entitled to notice in the action, of the deployed servicemember’s completion of deployment. Provided however, that:
(i) The court may thereafter conduct an expedited or emergency hearing for resolution of the child’s custody on the filing of a motion, filed prior to the expiration of the order, alleging that it would not be in the best interests of the child pursuant to the provisions of section 32-717, Idaho Code, if the order expires;
(ii) If a motion is so filed, the temporary order shall be extended until the court rules on the motion; and
(iii) Following the return from deployment of a deploying parent and until the temporary order for child custody is terminated, the court shall enter a temporary order granting the deploying parent reasonable contact with the child unless it is contrary to the best interests of the child pursuant to the provisions of section 32-717, Idaho Code.
(b) If the deployment of a party who is a servicemember affects the party’s ability or anticipated ability to appear at a regularly scheduled hearing related to a petition for modification of child custody, the court may provide for an expedited hearing to allow the servicemember to appear.
(c) If the deployment of a party who is a servicemember prevents the servicemember from appearing in person at a hearing related to a petition for the modification of child custody, the court may provide, upon reasonable advance notice to the parties, for the servicemember to present testimony and evidence by electronic means, if such can be done without prejudice to the ability of the servicemember to adequately and reasonably present such testimony and evidence.
(2) For purposes of this section:
(a) "Deployed" or "deployment" means military service performed in compliance with a valid order received by an active duty or reserve member of the armed services of the United States, national guard or United States coast guard to report for combat operations, contingency operations, peacekeeping operations, temporary duty, a remote tour of duty or other active service for which the deploying party reports. The term shall include those members who are actually deployed as well as those members with valid orders preparing to be deployed;
(b) "Electronic means" includes communication by telephone, video teleconference or the internet.
[32-720, added 2013, ch. 215, sec. 1, p. 506.]
A divorce may be granted for the cause of permanent insanity of the spouse: provided, that no divorce shall be granted under the provisions of this chapter unless such insane person shall have been duly and regularly confined in an insane asylum of this state, or of a sister state or territory, or foreign country for at least three (3) years next preceding the commencement of the action for divorce, nor unless it shall appear to the court that such insanity is permanent and incurable.
[(32-801) 1895, p. 11, sec. 1; reen. 1899, p. 232, sec. 1; am. 1903, p. 232, sec. 1; am. R.C. & C.L., sec. 4624; C.S., sec. 7037; I.C.A., sec. 31-801; am. 1945, ch. 106, sec. 1, p. 158; am. 1949, ch. 68, sec. 1, p. 114; am. 1953, ch. 48, sec. 1, p. 65.]
The district courts of the several judicial districts of this state shall have jurisdiction of actions for divorce under the provisions of this chapter; and such action shall be brought in the county of this state in which the plaintiff resides. And the court in which such action is about to be commenced shall, upon the filing by the plaintiff of a petition, duly verified, showing that a cause of action exists under this chapter, appoint some person to act as guardian of such insane person in such action, and the summons and complaint in such action shall be served upon the defendant by delivering a copy of such summons and complaint to such guardian, and by delivering a copy thereof to the county attorney of the county in which such action is brought.
[(32-802) 1895, p. 11, sec. 2; reen. 1899, p. 232, sec. 2; reen. R.C. & C.L., sec. 4625; C.S., sec. 7038; I.C.A., sec. 31-802.]
It shall be the duty of the county attorney upon whom the summons and complaint in such action shall be served to appear for such defendant in such action and defend the same, and no divorce shall be granted under the provisions of this chapter except in the presence of the county attorney.
[(32-803) 1895, p. 11, sec. 3; reen. 1899, p. 232, sec. 3; reen. R.C. & C.L., sec. 4626; C.S., sec. 7039; I.C.A., sec. 31-803.]
In any action brought under the provisions of this chapter the said courts and the judges thereof shall possess all the powers relative to the payment of maintenance and support, the distribution of property and the care and custody of children of the parties, that such courts now have, or may hereafter have, in other actions for divorce.
[(32-804) 1895, p. 11, sec. 4; reen. 1899, p. 232, sec. 4; reen. R.C. & C.L., sec. 4627; C.S., sec. 7040; I.C.A., sec. 31-804; am. 1980, ch. 378, sec. 11, p. 965.]
All the costs of the court in such action, as well as the actual expenses of the county attorney therein, together with the expenses and fees of the guardian therein, shall be paid by the plaintiff; such expenses of the county attorney and expenses and fees of the guardian shall be fixed and allowed by the court, and the court or the judge thereof may make such order as to the payment of such fees and expenses as to said court or judge may seem proper.
[(32-805) 1895, p. 11, sec. 5; reen. 1899, p. 232, sec. 5; reen. R.C. & C.L., sec. 4628; C.S., sec. 7041; I.C.A., sec. 31-805.]
Husband and wife contract toward each other obligations of mutual respect, fidelity and support.
[(32-901) R.S., sec. 2493; reen. R.C. & C.L., sec. 2674; C.S., sec. 4654; I.C.A., sec. 31-901.]
All property of either the husband or the wife owned by him or her before marriage, and that acquired afterward by either by gift, bequest, devise or descent, or that which either he or she shall acquire with the proceeds of his or her separate property, by way of moneys or other property, shall remain his or her sole and separate property.
[(32-903) 1866, p. 65, sec. 1; R.S., sec. 2495; am. 1903, p. 345, sec. 1; reen. R.C. & C.L., sec. 2676; C.S., sec. 4656; I.C.A., sec. 31-903; am. 1941, ch. 62, sec. 1, p. 123.]
During the continuance of the marriage, the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property, and may enter into any contract with reference to the same, in the same manner, and to the same extent, and with like effect, as a married man may in relation to his real and personal property: provided, that the husband shall be bound by such contracts to no greater extent or effect than his wife under similar circumstances would be bound by his contracts.
[(32-904) 1903, p. 345, sec. 2; reen. R.C. & C.L., sec. 2677; C.S., sec. 4657; I.C.A., sec. 31-904.]
Nothing in the two (2) preceding sections contained shall invalidate, alter or change any marriage settlement now made or to be made hereafter.
[(32-905) 1903, p. 345, sec. 4; reen. R.C. & C.L., sec. 2678; C.S., sec. 4658; I.C.A., sec. 31-905.]
(1) All other property acquired after marriage by either husband or wife is community property. The income, including the rents, issues and profits, of all property, separate or community, is community property unless the conveyance by which it is acquired provides or both spouses, by written agreement specifically so providing, declare that all or specifically designated property and the income, including the rents, issues and profits, from all or the specifically designated property shall be the separate property of one of the spouses or the income, including the rents, issues and profits, from all or specifically designated separate property be the separate property of the spouse to whom the property belongs. Such property shall be subject to the management of the spouse owning the property and shall not be liable for the debts of the other member of the community.
(2) Property conveyed by one spouse to the other shall be presumed to be the sole and separate estate of the grantee and only the grantor spouse need execute and acknowledge the deed or other instrument of conveyance notwithstanding the provisions of section 32-912, Idaho Code; provided, however, that the income, including the rents, issues and profits, from such property shall not be the separate property of the grantee spouse unless this fact is specifically stated in the instrument of conveyance.
[32-906, added 1980, ch. 300, sec. 2, p. 777; am. 2003, ch. 139, sec. 2, p. 407.]
Where community property, before or after the effective date of this section, is transferred by the husband and wife to a trust, regardless of the identity of the trustee, which trust originally or as amended prior or subsequent to such transfer (a) is revocable in whole or in part during their joint lives, (b) provides that the property after transfer to the trust shall remain community property and any withdrawal therefrom shall be their community property, and (c) is subject to amendment or alteration during their joint lifetime upon their joint consent, the property so transferred to such trust, and the interests of the spouses in such trust, shall be community property during the continuance of the marriage, unless the trust otherwise expressly provides. Nothing in this section shall be deemed to affect community property which, before or after the effective date of this section, is transferred in a manner other than as described in this section or to a trust containing different provisions than those set forth in this section; nor shall this section be construed to prohibit the trustee from conveying any trust property, real or personal, in accordance with the provisions of the trust without the consent of the husband or wife unless the trust expressly required the consent of one or both spouses.
[I.C., sec. 32-906A, as added by 1973, ch. 159, sec. 1, p. 304.]
A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the acknowledgment or proof of a conveyance of real property by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside.
[(32-907) 1866, p. 65, sec. 3; R.S., sec. 2500; reen. R.C. & C.L., sec. 2681; C.S., sec. 4661; I.C.A., sec. 31-908.]
The filing of the inventory in the recorder’s office is notice and prima facie evidence of the title of the wife.
[(32-908) 1866, p. 65, sec. 5; R.S., sec. 2501; reen. R.C. & C.L., sec. 2682; C.S., sec. 4662; I.C.A., sec. 31-909.]
The earnings and accumulations of the wife and of her minor children living with her or in her custody, while she is living separate from her husband are the separate property of the wife.
[(32-909) R.S., sec. 2502; reen. R.C. & C.L., sec. 2683; C.S., sec. 4663; I.C.A., sec. 31-910.]
The separate property of the husband is not liable for the debts of the wife contracted before the marriage.
[(32-910) 1866, p. 65, sec. 13; R.S., sec. 2503; reen. R.C. & C.L., sec. 2684; C.S., sec. 4664; I.C.A., sec. 31-911.]
The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts contracted before or after marriage.
[(32-911) 1866, p. 65, sec. 9; R.S., sec. 2504; reen. R.C. & C.L., sec. 2685; C.S., sec. 4665; I.C.A., sec. 31-912.]
Either the husband or the wife shall have the right to manage and control the community property, and either may bind the community property by contract, except that neither the husband nor wife may sell, convey or encumber the community real estate unless the other joins in executing the sale agreement, deed or other instrument of conveyance by which the real estate is sold, conveyed or encumbered, and any community obligation incurred by either the husband or the wife without the consent in writing of the other shall not obligate the separate property of the spouse who did not so consent; provided, however, that the husband or wife may by express power of attorney give to the other the complete power to sell, convey or encumber community property, either real or personal. All deeds, conveyances, bills of sale, or evidences of debt heretofore made in conformity herewith are hereby validated.
[(32-912) 1866, p. 65, sec. 9; 1885, p. 137, sec. 1; R.S., sec. 2505; reen. R.C., sec. 2686; am. 1913, ch. 105, p. 425; am. 1915, ch. 75, sec. 1, p. 187; compiled and reen. C.L., sec. 2686; C.S., sec. 4666; I.C.A., sec. 31-913; am. 1945, ch. 18, sec. 1, p. 26; am. 1974, ch. 194, sec. 2, p. 1502; am. 1991, ch. 63, sec. 1, p. 157.]
Whenever payment or refund is made to an employee, former employee, or such person’s beneficiary or heirs, legatees or estate pursuant to a written retirement, death, stock, or other employee benefit plan or savings plan such payment or refund shall fully discharge the employer, former employer, and any trustee or insurance company making such payment or refund from all adverse claims thereto unless such payment or refund is made within twenty (20) days following the death of such employee or former employee or unless before such payment or refund is made, the employer or former employer, where the payment or refund is made by the employer or former employer, has received at its principal place of business within this state or home office, written or oral notice by or on behalf of some other person that such other person claims to be entitled to such payment or refund or some part thereof, or where a trustee or insurance company is making the payment or refund, such notice has been received by the trustee or insurance company at its home office or its principal place of business within this state. Should said payment or refund be comprised in whole or in part of stock of any corporation, such corporation may accept said stock for transfer as directed by the employer, former employer, or the trustee making such payment or refund, and shall be entitled to treat the transferee as the owner of said stock for all purposes unless the corporation has received, at its home office, written or oral notice by or on behalf of some other person that such other person claims to be entitled to such stock or to some interest therein. This section shall not affect any claim or right to any such payment or refund or part thereof as between all persons other than the employer or former employer and the trustee or insurance company making such payment or refund or the corporation accepting such stock for transfer.
[32-913, added 1977, ch. 168, sec. 1, p. 433.]
No estate is allowed the husband tenant by curtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband.
[(32-914) 1866, p. 65, sec. 10; R.S., sec. 2506; reen. R.C. & C.L., sec. 2687; C.S., sec. 4668; I.C.A., sec. 31-915.]
The property rights of husband and wife are governed by this chapter, unless there is a marriage settlement agreement entered into during marriage containing stipulations contrary thereto.
[(32-916) 1866, p. 65, sec. 15; R.S., sec. 2508; reen. R.C. & C.L., sec. 2689; C.S., sec. 4670; I.C.A., sec. 31-917; am. 1980, ch. 299, sec. 1, p. 777; am. 1995, ch. 229, sec. 1, p. 780.]
All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as conveyances of land are required to be executed and acknowledged or proved.
[(32-917) 1866, p. 65, sec. 16; R.S., sec. 2509; reen. R.C. & C.L., sec. 2690; C.S., sec. 4671; I.C.A., sec. 31-918.]
(1) When such contract is acknowledged or proved, it must be recorded in the office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract.
(2) (a) A summary of the contract may be recorded in lieu of the contract, under this chapter or the laws of this state, if the requirements of this section are substantially met.
(b) A summary of the contract shall be signed and acknowledged by all parties to the original contract. The summary of the contract shall clearly state:
(i) The names of the parties to the original contract;
(ii) The complete mailing address of all parties;
(iii) The title and date of the contract;
(iv) A description of the interest or interests in real property created by the contract; and
(v) The legal description of the property.
(c) Other elements of the contract may be stated in the summary.
(3) If the requirements of this section are met, the summary of the contract may be recorded under the provisions of this chapter and, as to the contents of the summary only, it shall have the same force and effect as if the original contract had been recorded, and constructive notice shall be deemed to be given concerning the contents of the summary and the existence of the contract to any subsequent purchasers, mortgagees, or other persons or entities that acquire an interest in the real property.
[(32-918) 1866, p. 65, sec. 17; R.S., sec. 2510; reen. R.C. & C.L., sec. 2691; C.S., sec. 4672; I.C.A., sec. 31-919; am. 2005, ch. 124, sec. 1, p. 408.]
The recording or nonrecording of such contract has a like effect as the recording or nonrecording of a conveyance of real property.
[(32-919) 1866, p. 65, sec. 18; R.S., sec. 2511; reen. R.C. & C.L., sec. 2692; C.S., sec. 4673; I.C.A., sec. 31-920.]
A minor capable of contracting marriage may make a valid marriage settlement.
[(32-920) 1866, p. 65, sec. 20; R.S., sec. 2512; reen. R.C. & C.L., sec. 2693; C.S., sec. 4674; I.C.A., sec. 31-921.]
As used in this act:
(1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
(2) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
[32-921, added 1995, ch. 229, sec. 2, p. 780.]
A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration. The premarital agreement shall be executed and acknowledged or proved as provided in sections 32-917 through 32-919, Idaho Code.
[32-922, added 1995, ch. 229, sec. 2, p. 781.]
(1) Parties to a premarital agreement may contract with respect to:
(a) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(b) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(c) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(d) The modification or elimination of spousal support;
(e) The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(f) The ownership rights in and disposition of the death benefit from a life insurance policy;
(g) The choice of law governing the construction of the agreement; and
(h) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(2) The right of a child to support may not be adversely affected by a premarital agreement.
[32-923, added 1995, ch. 229, sec. 2, p. 781.]
A premarital agreement becomes effective upon marriage. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
[32-924, added 1995, ch. 229, sec. 2, p. 781.]
(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(a) That party did not execute the agreement voluntarily; or
(b) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
(3) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
[32-925, added 1995, ch. 229, sec. 2, p. 781.]
If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
[32-926, added 1995, ch. 229, sec. 2, p. 782.]
Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled as to the premarital agreement during the marriage of the parties. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
[32-927, added 1995, ch. 229, sec. 2, p. 782.]
This act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.
[32-928, added 1995, ch. 229, sec. 2, p. 782.]
This act may be cited as the "Uniform Premarital Agreement Act."
[32-929, added 1995, ch. 229, sec. 2, p. 782.]
The proper court may direct an allowance to be made to the parent of a child, out of its property for its past or future support and education, on such conditions as may be proper, whenever such direction is for its benefit.
[(32-1001) R.S., sec. 2530; reen. R.C. & C.L., sec. 2694; C.S., sec. 4675; I.C.A., sec. 31-1001.]
If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent.
[(32-1003) R.S., sec. 2532; reen. R.C. & C.L., sec. 2696; C.S., sec. 4677; I.C.A., sec. 31-1003.]
The wages of a minor employed in service may be paid to him, unless, within thirty (30) days after the commencement of the service the parent or guardian entitled thereto gives the employer notice that he claims such wages.
[(32-1004) R.S., sec. 2533; reen. R.C. & C.L., sec. 2697; C.S., sec. 4678; I.C.A., sec. 31-1004.]
(1) When a husband and wife live in a state of separation, without being divorced, any court of competent jurisdiction, upon application of either, if an inhabitant of this state, may inquire into the custody of any unmarried minor child of the marriage, and may award the custody of such child to either, for such time and under such regulations as the case may require. The decision of the court must be guided by the welfare of the child.
(2) As used in this chapter:
(a) "Adaptive equipment" means any piece of equipment or any item that is used to increase, maintain or improve the parenting capabilities of a parent with a disability.
(b) "Disability" means, with respect to an individual, any mental or physical impairment which substantially limits one (1) or more major life activities of the individual including, but not limited to, self-care, manual tasks, walking, seeing, hearing, speaking, learning or working, or a record of such an impairment, or being regarded as having such an impairment. Disability shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behavior disorders, substance use disorders, compulsive gambling, kleptomania or pyromania. Sexual preference or orientation is not considered an impairment or disability. Whether an impairment substantially limits a major life activity shall be determined without consideration of the affect of corrective or mitigating measures used to reduce the effects of the impairment.
(c) "Supportive services" means services which assist a parent with a disability to compensate for those aspects of their disability which affect their ability to care for their child and which will enable them to discharge their parental responsibilities. The term includes specialized or adapted training, evaluations, or assistance with effective use of adaptive equipment, and accommodations which allow a parent with a disability to benefit from other services, such as braille texts or sign language interpreters.
(3) Nothing in this chapter shall be construed to allow discrimination on the basis of disability. If a parent has a disability as defined in this chapter the parent shall have the right to provide evidence and information regarding the manner in which the use of adaptive equipment or supportive services will enable the parent to carry out the responsibilities of parenting the child. The court shall advise the parent of such right. Nothing in this section shall be construed to create any new or additional obligations on state or local governments to purchase or provide adaptive equipment or supportive services for parents with disabilities. In any case where the disability of a parent is found by the court to be relevant to an award of custody of a child, the court shall make specific findings concerning the disability and what affect, if any, the court finds the disability has on the best interests of the child.
[(32-1005) R.S., sec. 2534; reen. R.C. & C.L., sec. 2698; C.S., sec. 4679; I.C.A., sec. 31-1005; am. 2002, ch. 232, sec. 2, p. 665.]
A child born before wedlock becomes legitimate by the subsequent marriage of its parents.
[(32-1006) 1876, p. 24, sec. 21; R.S., sec. 2535; reen. R.C. & C.L., sec. 2699; C.S., sec. 4680; I.C.A., sec. 31-1006.]
The father and mother of a legitimate unmarried minor child are equally entitled to its custody, services and earnings. If either the father or mother be dead or be unable or refuse to take the custody or has abandoned his or her family, the other is entitled to the child’s custody, services and earnings.
[(32-1007) R.C., sec. 2699a, as added by 1915, ch. 120, sec. 1, p. 265; compiled and reen. C.L., sec. 2699a; C.S., sec. 4681; I.C.A., sec. 31-1007.]
Notwithstanding any other provision of law to the contrary, a court shall vacate a child support order if the court finds, by clear and convincing evidence, that the moving party is not the biological father of the child who is the subject of the support order, and that the obligee knowingly and intentionally misrepresented the paternity of the child to the obligor. The obligor shall file the motion to vacate the order within two (2) years of discovery of evidence that he is not the biological father of the child. If the order is vacated, the obligor may bring an action in court against the obligee or the true biological father of the child to obtain restitution for child support previously paid pursuant to the order.
[32-1009, added 2004, ch. 274, sec. 1, p. 764.]
(1) This section through section 32-1015, Idaho Code, shall be known and may be cited as the "Idaho Parental Rights Act."
(2) The interests and role of parents in the care, custody and control of their children are both implicit in the concept of ordered liberty and deeply rooted in our nation’s history and tradition. They are also among the unalienable rights retained by the people under the ninth amendment to the constitution of the United States.
(3) The interests of the parents include the high duty and right to nurture and direct their children’s destiny, including their upbringing and education.
(4) The state of Idaho has independent authority to protect its parents’ fundamental right to nurture and direct their children’s destiny, upbringing and education.
(5) The protections and rights recognized in sections 32-1011 through 32-1015, Idaho Code, are rooted in the due process of law guaranteed pursuant to section 13, article I of the constitution of the state of Idaho.
(6) Governmental efforts that restrict or interfere with these fundamental rights are only permitted if that restriction or interference satisfies the strict scrutiny standard provided in section 32-1013, Idaho Code.
(7) Nothing in this act shall be construed as altering the established presumption in favor of the constitutionality of statutes and regulations.
(8) The provisions of the Idaho parental rights act are hereby declared to be severable, and if any provision of the act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of the act.
[32-1010, added 2015, ch. 219, sec. 1, p. 681; am. 2021, ch. 286, sec. 1, p. 860; am. 2026, ch. 245, sec. 1, p. 1039.]
Parents who have legal custody of any minor child or children have the fundamental right to make decisions concerning their care, custody and control.
[32-1011, added 2015, ch. 219, sec. 2, p. 681.]
Parents who have legal custody of any minor child or children have the fundamental right and duty to make decisions concerning their education, including the right to cause the child to be educated in any manner authorized under section 33-202, Idaho Code, and section 9, article IX, of the constitution of the state of Idaho.
[32-1012, added 2015, ch. 219, sec. 3, p. 681.]
(1) Neither the state of Idaho, nor any political subdivision thereof, may violate a parent’s fundamental and established rights protected by this act, and any restriction of or interference with such rights shall not be upheld unless it demonstrates by clear and convincing evidence that the restriction or interference is both:
(a) Essential to further a compelling governmental interest; and
(b) The least restrictive means available for the furthering of that compelling governmental interest.
(2) The foregoing principles apply to any interference whether now existing or hereafter enacted.
(3) Nothing in this act shall be construed as invalidating the provisions of the child protective act in chapter 16, title 16, Idaho Code, or modifying the burden of proof at any stage of proceedings under the child protective act.
(4) When a parent’s fundamental rights protected by this act are violated, a parent may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against the governmental entity.
(5) If a parent prevails in a civil action against the state, or a political subdivision thereof, as provided in subsection (4) of this section, the parent is entitled to reasonable attorney’s fees and costs.
(6) All civil actions brought pursuant to sections 32-1010 through 32-1015, Idaho Code, shall be initiated within two (2) years after the harm occurred or two (2) years after the discovery, by the parent, of the facts constituting the claim, whichever is later.
[32-1013, added 2015, ch. 219, sec. 4, p. 681; am. 2026, ch. 245, sec. 2, p. 1040.]
At no time shall the existence of any order, proclamation, or declaration issued pursuant to chapter 6 or 10, title 46, Idaho Code, be considered essential to further a compelling governmental interest to justify:
(1) Forced medical action on a child;
(2) Forced removal of a child from the home; or
(3) The violation of or interference with a parent’s fundamental and established rights protected by the Idaho parental rights act.
[32-1014, added 2021, ch. 286, sec. 2, p. 861.]
(1) As used in this section:
(a) "Governmental entity" means the state and its political subdivisions.
(b) "Health care provider" means:
(i) A physician, health care practitioner, or other individual licensed, accredited, or certified to perform health care services or provide counseling consistent with state law, or any agent or third-party representative thereof; or
(ii) A health care facility or its agent.
(c) "Health care service" means a service for the diagnosis, screening, examination, prevention, treatment, cure, care, or relief of any physical or mental health condition, illness, injury, defect, or disease.
(d) "Health information" means information or data, collected or recorded in any form or medium, and personal facts of information about events or relationships that relates to:
(i) The past, present, or future physical, mental, or behavioral health or condition of an individual or member of the individual’s family;
(ii) The provision of health care services to an individual; or
(iii) Payment for the provision of health care services to an individual.
(e) "Minor child" means an individual under eighteen (18) years of age but does not include an individual who is an emancipated minor.
(f) "Parent" means a biological parent of a child, an adoptive parent of a child, or an individual who has been granted exclusive right and authority over the welfare of a child under state law.
(2) Parents who have legal custody of any minor child have the fundamental right and duty to make decisions concerning the furnishing of health care services to the minor child.
(3) Except as otherwise provided by this section or court order, an individual, health care provider, or governmental entity shall not furnish a health care service or solicit to furnish a health care service to a minor child without obtaining the informed consent of the minor child’s parent. When interpreting this subsection:
(a) No individual acting reasonably under the circumstances shall be found in violation of this subsection by furnishing nonemergency first aid services and care to a minor child appearing or represented to be sick or injured. Such services and care may include dressing minor wounds, applying topical agents, providing fluids or ice, and performing checks to identify minor illnesses; and
(b) This subsection shall not be construed to invalidate any protections or immunities granted to any individual administering first aid services and care pursuant to any provision of Idaho Code.
(4) Subsection (3) of this section shall not apply, and a health care provider may authorize or furnish a health care service without obtaining the informed consent of the minor child’s parent, if:
(a)(i) A parent of the minor child has given blanket consent authorizing the health care provider to furnish the health care service, provided that:
Such consent must be in writing on a form provided by the health care provider. The form shall be titled "Blanket Consent Form for Health Care Services for Minor." The title must be in bold, 30-point font. On the first page, the form shall state in bold, 24-point font: "Providing blanket consent is optional and may, instead, be given on a case-by-case basis. Blanket consent may be withdrawn by a parent at any time.";
No parent shall be required or pressured to sign a blanket consent form as a condition of the minor child enrolling in public school or participating in any school-sponsored activity; and
A parent may revoke consent to furnish any further health care service to a minor child at any time.
(ii) A blanket consent written by a parent or guardian for the child shall be valid if signed by the parent or guardian even though it does not meet the requirements of paragraph (a)(i) of this subsection.
(b) The health care provider reasonably determines that a medical emergency exists and:
(i) Furnishing the health care service is necessary in order to prevent death or address a serious bodily harm to the minor child; or
(ii) After a reasonably diligent effort, the health care provider cannot locate or contact a parent of the minor child and the health care service is furnished to prevent loss of life or serious physical illness or injury to the minor child;
(c) A minor child is seeking health care or medical treatment that is directly related to an allegation of a crime of physical violence against the minor child or to collect evidence related to such crime when the collection of such evidence is time-sensitive;
(d) The service is limited to nonemergency first aid services and care to a minor appearing or represented to be sick or injured;
(e) A minor child utilizes the 988 Idaho crisis and suicide hotline and receives immediate crisis and suicide prevention services. If the Idaho crisis and suicide hotline determines that the minor child is experiencing suicidal ideation, it may offer and conduct a follow-up call within forty-eight (48) hours solely for the purposes of reassessing safety, reviewing the safety plan, and encouraging communication with the child’s parent or guardian; or
(f) The health care provider is furnishing the health care service for the purpose of detecting or diagnosing pregnancy or providing prenatal or peripartum care, which shall not include abortion or performing or facilitating an abortion as that term is defined in section 18-8702, Idaho Code.
(5) Nothing in this section or any other provision of Idaho Code shall prevent a health care provider from screening and treating a newborn infant for illegal drugs or substances if a reasonable suspicion suggests their presence, provided that the results of the test or the fact of treatment may not be used against the parent in any criminal proceeding.
(6) No health care provider or governmental entity shall deny a minor child’s parent access to health information that is:
(a) In such health care provider’s or governmental entity’s control; and
(b) Requested by the minor child’s parent.
(7) Subsection (6) of this section shall not apply if:
(a) The parent’s access to the requested health information is prohibited by a court order;
(b) The health information is a record that relates to physical abuse, abandonment, or neglect by the parent, as provided in section 33-6001(3), Idaho Code; or
(c) The parent is a subject of an investigation related to a crime committed against the child, and a law enforcement officer requests that the information not be released to the parent.
(8) This section shall be construed in favor of a broad protection of parents’ fundamental right to make decisions concerning the furnishing of health care services to minor children.
(9) This section does not make legal and in no way condones any abuse, abandonment, or neglect, including any act or omission described in section 16-1602, Idaho Code.
(10) This section does not make legal and in no way condones euthanasia, mercy killing, or assisted suicide, or permit an affirmative or deliberate act or omission to end life, including any act or omission described in section 18-4017, Idaho Code, other than to allow the natural process of dying.
(11) If a minor child does not have an affirmative right of access to a specific treatment, service, or procedure, this section shall not be construed to grant the parent a right to access such treatment, service, or procedure.
(12) This section shall not be construed to prohibit a court from issuing an order that is otherwise permitted by law.
(13)(a) Subject to the limitations of chapter 9, title 6, Idaho Code, any parent who is deprived of a right as a result of a violation of this section shall have a private right of action against the individual, health care provider, or governmental entity.
(b) A parent may raise this section as a defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state, any private person, or any other party.
(c) A parent who successfully asserts a claim or defense under this section may recover declaratory relief, injunctive relief, compensatory damages, reasonable attorney’s fees, and any other relief available under law.
[32-1015, added 2024, ch. 148, sec. 1, p. 594; am. 2026, ch. 245, sec. 3, p. 1040.]
(1) This section shall be known and may be cited as the "Pediatric Secretive Transitions Parental Rights Act."
(2) The legislature finds that:
(a) Parents have a fundamental right to raise their children and make medical and educational decisions on their behalf;
(b) Medical and social sex transitions can inflict severe and irreversible harm to a child’s well-being; and
(c) It is undoubtedly a parental purview and prerogative to have knowledge of, and the authority to deny, a child’s efforts at sex transition procedures or social transitions.
(3) It is the intent of the legislature to prohibit any health care provider or educational institution from facilitating a pediatric sex transition or social transition without informing and obtaining informed consent from a minor child’s parents or guardians.
(4) As used in this section:
(a) "Aggrieved person" means the parent or guardian of a child subjected to sex transition procedures or social transitions.
(b) "Child" means an individual who is less than eighteen (18) years of age and who is not married or legally emancipated.
(c) "Covered entity" means a primary or secondary educational institution, a child care provider, or a medical, behavioral, or mental health care provider.
(d) "Sex transition procedure" means a practice prohibited pursuant to section 18-1506C, Idaho Code.
(e) "Social transition" means the process by which an individual goes from identifying with and living as a gender that corresponds to the individual’s sex to identifying with and living as a gender different from the individual’s sex and may involve social, legal, or physical changes, including adopting a name, pronouns, appearance, or dress that does not correspond to the individual’s sex.
(5) A covered entity shall not withhold information from a child’s parent or guardian related to the parent’s child’s expressed interest in or desire for sex transition procedures.
(6) A covered entity shall notify a minor student’s parent within seventy-two (72) hours of receiving any request by the minor student to participate in or facilitate the social transition of the minor student, including any request by the minor student to:
(a) Be referred to by pronouns or titles that do not correspond to the minor student’s biological sex;
(b) Be referred to using names other than the minor student’s legal name, or a nickname or derivative thereof, either in school records or otherwise;
(c) Use restrooms, locker rooms, changing rooms, or overnight lodging designated for the opposite biological sex; or
(d) Participate on an athletic team or any other sex-separated school activity designated for the opposite sex.
(7) A covered entity shall not aid or abet a child’s efforts to socially transition without first obtaining written consent from the child’s parent. Nothing in this section shall be construed to authorize or permit the use of public funds, public property, or the time or services of public employees to aid or abet a child’s efforts to socially transition.
(8) A covered entity shall not aid or abet a child’s efforts to obtain sex transition procedures.
(9) An aggrieved person may commence an action at law or equity in a court of competent jurisdiction against a covered entity for violations of this section.
(10) If an aggrieved person proves that a covered entity violated the provisions of this section, such aggrieved person is entitled to recover:
(a) Declaratory relief;
(b) Injunctive relief;
(c) Compensatory damages; and
(d) Reasonable costs and attorney’s fees as allowed by statute or court rule.
(11) The attorney general shall have the authority to investigate allegations of violations of this section.
(12) In addition to any relief granted to aggrieved persons under a civil action, the attorney general may seek, and a court may award, civil penalties of up to one hundred thousand dollars ($100,000) against a covered entity for violation of this section. Such civil penalties shall be proportionate to the violation as determined by the court based on the facts and circumstances of the violation, including the seriousness of the violation, the state of mind of the violator, and the damages actually caused by the violation of this section. Penalties awarded pursuant to this section shall be deposited in the state general fund.
(13) The attorney general may refer a covered entity that has violated this section to any licensing board that has issued a professional license to the covered entity. A licensing board is authorized to discipline a covered entity that has been referred to it pursuant to this subsection in a manner that it deems appropriate for a violation of this section.
(14) The attorney general may file suit for a writ of mandamus compelling covered entities to comply with the provisions of this section.
(15) Nothing in this section shall be construed to conflict with the application or enforcement of section 18-1506C, Idaho Code.
[32-1016, added 2026, ch. 340, sec. 1, p. 1324.]
This chapter may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act."
[32-11-101, added 2000, ch. 227, sec. 2, p. 624.]
In this chapter:
(a) "Abandoned" means left without provision for reasonable and necessary care or supervision.
(b) "Child" means an individual who has not attained eighteen (18) years of age.
(c) "Child custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.
(d) "Child custody proceeding" means a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation or enforcement under part 3 of this chapter.
(e) "Commencement" means the filing of the first pleading in a proceeding.
(f) "Court" means an entity authorized under the law of a state to establish, enforce or modify a child custody determination.
(g) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six (6) months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
(h) "Initial determination" means the first child custody determination concerning a particular child.
(i) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this chapter.
(j) "Issuing state" means the state in which a child custody determination is made.
(k) "Modification" means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.
(l) "Person" means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency or instrumentality; public corporation; or any other legal or commercial entity.
(m) "Person acting as a parent" means a person, other than a parent, who:
(1) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
(2) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
(n) "Petitioner" means a person who seeks enforcement of an order for return of a child under the Hague convention on the civil aspects of international child abduction or enforcement of a child custody determination.
(o) "Physical custody" means the physical care and supervision of a child.
(p) "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague convention on the civil aspects of international child abduction or enforcement of a child custody determination.
(q) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(r) "Tribe" means an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state.
(s) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child.
[32-11-102, added 2000, ch. 227, sec. 2, p. 624.]
This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.
[32-11-103, added 2000, ch. 227, sec. 2, p. 626.]
A child custody proceeding that pertains to an Indian child as defined in the Indian child welfare act, 25 U.S.C. 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian child welfare act.
[32-11-104, added 2000, ch. 227, sec. 2, p. 626.]
(a) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying parts 1 and 2 of this chapter.
(b) Except as otherwise provided in subsection (c) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under part 3 of this chapter.
(c) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.
[32-11-105, added 2000, ch. 227, sec. 2, p. 626.]
A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with section 32-11-108, Idaho Code, or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.
[32-11-106, added 2000, ch. 227, sec. 2, p. 626.]
If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.
[32-11-107, added 2000, ch. 227, sec. 2, p. 626.]
(a) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
(b) Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.
(c) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.
[32-11-108, added 2000, ch. 227, sec. 2, p. 626.]
(a) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.
(b) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.
(c) The immunity granted by subsection (a) of this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.
[32-11-109, added 2000, ch. 227, sec. 2, p. 626.]
(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.
(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
(c) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
(d) Except as otherwise provided in subsection (c) of this section, a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.
(e) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
[32-11-110, added 2000, ch. 227, sec. 2, p. 627.]
(a) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.
(b) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
(c) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.
[32-11-111, added 2000, ch. 227, sec. 2, p. 627.]
(a) A court of this state may request the appropriate court of another state to:
(1) Hold an evidentiary hearing;
(2) Order a person to produce or give evidence pursuant to procedures of that state;
(3) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
(4) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
(5) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
(b) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (a) of this section.
(c) Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) of this section may be assessed against the parties according to the law of this state.
(d) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains eighteen (18) years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.
[32-11-112, added 2000, ch. 227, sec. 2, p. 628.]
(a) Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 32-11-207 or 32-11-208, Idaho Code, and:
(A) The child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships;
(3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 32-11-207 or 32-11-208, Idaho Code; or
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3) of this subsection.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
[32-11-201, added 2000, ch. 227, sec. 2, p. 628.]
(a) Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state which has made a child custody determination consistent with section 32-11-201 or 32-11-203, Idaho Code, has exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships; or
(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
(b) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 32-11-201, Idaho Code.
[32-11-202, added 2000, ch. 227, sec. 2, p. 629.]
Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under section 32-11-201(a)(1) or (2), Idaho Code, and:
(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 32-11-202, Idaho Code, or that a court of this state would be a more convenient forum under section 32-11-207, Idaho Code; or
(b) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
[32-11-203, added 2000, ch. 227, sec. 2, p. 629.]
(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 32-11-201 through 32-11-203, Idaho Code, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to sections 32-11-201 through 32-11-203, Idaho Code, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.
[32-11-204, added 2000, ch. 227, sec. 2, p. 629.]
(a) Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of section 32-11-108, Idaho Code, must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
(b) This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
(c) The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by the law of this state as in child custody proceedings between residents of this state.
[32-11-205, added 2000, ch. 227, sec. 2, p. 630.]
(a) Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state may not exercise its jurisdiction under part 2 of this chapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section 32-11-207, Idaho Code.
(b) Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section 32-11-209, Idaho Code. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
(c) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
(1) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying or dismissing the proceeding for enforcement;
(2) Enjoin the parties from continuing with the proceeding for enforcement; or
(3) Proceed with the modification under conditions it considers appropriate.
[32-11-206, added 2000, ch. 227, sec. 2, p. 630.]
(a) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
[32-11-207, added 2000, ch. 227, sec. 2, p. 631.]
(a) Except as otherwise provided in section 32-11-204, Idaho Code, or by other law of this state, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(2) A court of the state otherwise having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code, determines that this state is a more appropriate forum under section 32-11-207, Idaho Code; or
(3) No court of any other state would have jurisdiction under the criteria specified in sections 32-11-201 through 32-11-203, Idaho Code.
(b) If a court of this state declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code.
(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs or expenses against this state unless authorized by law other than this chapter.
[32-11-208, added 2000, ch. 227, sec. 2, p. 632.]
(a) In a child custody proceeding each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
(2) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
(b) If the information required by subsection (a) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
(c) If the declaration as to any of the items described in subsections (a)(1) through (3) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
[32-11-209, added 2000, ch. 227, sec. 2, p. 632.]
(a) In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.
(b) If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to section 32-11-108, Idaho Code, include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
(c) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.
(d) If a party to a child custody proceeding who is outside this state is directed to appear under subsection (b) of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.
[32-11-210, added 2000, ch. 227, sec. 2, p. 633.]
Under this chapter a court of this state may enforce an order for the return of the child made under the Hague convention on the civil aspects of international child abduction as if it were a child custody determination.
[32-11-302, added 2000, ch. 227, sec. 2, p. 634.]
(a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.
(b) A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The remedies provided in this part 3 are cumulative and do not affect the availability of other remedies to enforce a child custody determination.
[32-11-303, added 2000, ch. 227, sec. 2, p. 634.]
(a) A court of this state which does not have jurisdiction to modify a child custody determination, may issue a temporary order enforcing:
(1) A visitation schedule made by a court of another state; or
(2) The visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
(b) If a court of this state makes an order under subsection (a)(2) of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in part 2 of this chapter. The order remains in effect until an order is obtained from the other court or the period expires.
[32-11-304, added 2000, ch. 227, sec. 2, p. 634.]
(a) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the office of the clerk of any district court in this state:
(1) A letter or other document requesting registration;
(2) Two (2) copies, including one (1) certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
(3) Except as otherwise provided in section 32-11-209, Idaho Code, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
(b) On receipt of the documents required by subsection (a) of this section, the registering court shall:
(1) Cause the determination to be filed as a foreign judgment, together with one (1) copy of any accompanying documents and information, regardless of their form; and
(2) Serve notice upon the persons named pursuant to subsection (a)(3) of this section and provide them with an opportunity to contest the registration in accordance with this section.
(c) The notice required by subsection (b)(2) of this section must state that:
(1) A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
(2) A hearing to contest the validity of the registered determination must be requested within twenty (20) days after service of notice; and
(3) Failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
(d) A person seeking to contest the validity of a registered order must request a hearing within twenty (20) days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
(1) The issuing court did not have jurisdiction under part 2 of this chapter;
(2) The child custody determination sought to be registered has been vacated, stayed or modified by a court having jurisdiction to do so under part 2 of this chapter; or
(3) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section 32-11-108, Idaho Code, in the proceedings before the court that issued the order for which registration is sought.
(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.
(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
[32-11-305, added 2000, ch. 227, sec. 2, p. 634.]
(a) A court of this state may grant any relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state.
(b) A court of this state shall recognize and enforce, but may not modify, except in accordance with part 2 of this chapter, a registered child custody determination of a court of another state.
[32-11-306, added 2000, ch. 227, sec. 2, p. 635.]
If a proceeding for enforcement under part 3 of this chapter is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under part 2 of this chapter, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.
[32-11-307, added 2000, ch. 227, sec. 2, p. 635.]
(a) A petition under part 3 of this chapter must be verified. Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
(b) A petition for enforcement of a child custody determination must state:
(1) Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
(2) Whether the determination for which enforcement is sought has been vacated, stayed or modified by a court whose decision must be enforced under this chapter and, if so, identify the court, the case number and the nature of the proceeding;
(3) Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
(4) The present physical address of the child and the respondent, if known;
(5) Whether relief in addition to the immediate physical custody of the child and attorney’s fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
(6) If the child custody determination has been registered and confirmed under section 32-11-305, Idaho Code, the date and place of registration.
(c) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.
(d) An order issued under subsection (c) of this section must state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs and expenses under section 32-11-312, Idaho Code, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
(1) The child custody determination has not been registered and confirmed under section 32-11-305, Idaho Code, and that:
(A) The issuing court did not have jurisdiction under part 2 of this chapter;
(B) The child custody determination for which enforcement is sought has been vacated, stayed or modified by a court having jurisdiction to do so under part 2 of this chapter;
(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of section 32-11-108, Idaho Code, in the proceedings before the court that issued the order for which enforcement is sought; or
(2) The child custody determination for which enforcement is sought was registered and confirmed under section 32-11-305, Idaho Code, but has been vacated, stayed or modified by a court of a state having jurisdiction to do so under part 2 of this chapter.
[32-11-308, added 2000, ch. 227, sec. 2, p. 636.]
Except as otherwise provided in section 32-11-311, Idaho Code, the petition and order must be served, by any method authorized by the law of this state, upon respondent and any person who has physical custody of the child.
[32-11-309, added 2000, ch. 227, sec. 2, p. 637.]
(a) Unless the court issues a temporary emergency order pursuant to section 32-11-204, Idaho Code, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:
(1) The child custody determination has not been registered and confirmed under section 32-11-305, Idaho Code, and that:
(A) The issuing court did not have jurisdiction under part 2 of this chapter;
(B) The child custody determination for which enforcement is sought has been vacated, stayed or modified by a court of a state having jurisdiction to do so under part 2 of this chapter; or
(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of section 32-11-108, Idaho Code, in the proceedings before the court that issued the order for which enforcement is sought; or
(2) The child custody determination for which enforcement is sought was registered and confirmed under section 32-11-305, Idaho Code, but has been vacated, stayed or modified by a court of a state having jurisdiction to do so under part 2 of this chapter.
(b) The court shall award the fees, costs and expenses authorized under section 32-11-312, Idaho Code, and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.
(c) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
(d) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under part 3 of this chapter.
[32-11-310, added 2000, ch. 227, sec. 2, p. 637.]
(a) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.
(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by section 32-11-308(b), Idaho Code.
(c) A warrant to take physical custody of a child must:
(1) Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
(2) Direct law enforcement officers to take physical custody of the child immediately; and
(3) Provide for the placement of the child pending final relief.
(d) The respondent must be served with the petition, warrant and order immediately after the child is taken into physical custody.
(e) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
(f) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child’s custodian.
[32-11-311, added 2000, ch. 227, sec. 2, p. 638.]
(a) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.
(b) The court may not assess fees, costs or expenses against a state unless authorized by law other than this chapter.
[32-11-312, added 2000, ch. 227, sec. 2, p. 638.]
A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter which enforces a child custody determination by a court of another state unless the order has been vacated, stayed or modified by a court having jurisdiction to do so under part 2 of this chapter.
[32-11-313, added 2000, ch. 227, sec. 2, p. 638.]
An appeal may be taken from a final order in a proceeding under this chapter. The court shall make every effort to expedite the appeal. Unless the court enters a temporary emergency order under section 32-11-204, Idaho Code, the enforcing court may not stay an order enforcing a child custody determination pending appeal.
[32-11-314, added 2000, ch. 227, sec. 2, p. 638.]
(a) In a case arising under this chapter or involving the Hague convention on the civil aspects of international child abduction, the county prosecuting attorney may take any lawful action, including resort to a proceeding under this chapter or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child custody determination if there is:
(1) An existing child custody determination;
(2) A request to do so from a court in a pending child custody proceeding;
(3) A reasonable belief that a criminal statute has been violated; or
(4) A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague convention on the civil aspects of international child abduction.
(b) The county prosecuting attorney acting under this section acts on behalf of the court and may not represent any party.
[32-11-315, added 2000, ch. 227, sec. 2, p. 639.]
At the request of the county prosecuting attorney acting under section 32-11-315, Idaho Code, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist the county prosecuting attorney with responsibilities under section 32-11-315, Idaho Code.
[32-11-316, added 2000, ch. 227, sec. 2, p. 639.]
If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the county prosecuting attorney and law enforcement officers under section 32-11-315 or 32-11-316, Idaho Code.
[32-11-317, added 2000, ch. 227, sec. 2, p. 639.]
In applying and construing this chapter, otherwise known as the uniform child custody jurisdiction and enforcement act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
[32-11-401, added 2000, ch. 227, sec. 2, p. 639.]
If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
[32-11-402, added 2000, ch. 227, sec. 2, p. 639.]
A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this chapter as the uniform child custody jurisdiction and enforcement act is governed by the law in effect at the time the motion or other request was made.
[32-11-405, added 2000, ch. 227, sec. 2, p. 639.]
The legislature of the state of Idaho finds that a significant number of people who are owed child support are not paid in accordance with the terms of their child support orders; and that income withholding is an effective remedy to insure compliance with child support orders. The following legislation is enacted to ensure that all child support orders will include in them the authority necessary to permit wage withholding. The legislation also includes provisions for the establishment of a support order to insure that all dependent children are adequately supported, regardless of the past or current marital status of the parents. This chapter shall be liberally construed to assure that all dependent children are adequately supported.
[32-1201, added 1986, ch. 222, sec. 1, p. 594.]
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:
(1) "Business day" means a day on which state offices are open for regular business.
(2) "Child support services" means support enforcement or collection and disbursement services.
(3) "Current support" means the present month’s required support pursuant to an order that is to be paid in increments, excluding amounts ordered to satisfy a delinquency.
(4) "Delinquency" means the amount of unpaid support that has accrued from the date a child support order is entered or an amount due on a judgment for support for a prior period.
(5) "Department" means the department of health and welfare.
(6) "Dependent child" means any child for whom a support order has been established or for whom a duty of support is owed.
(7) "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of any amount required by law to be withheld.
(8) "Duty of support" means the duty to provide for the needs of a dependent child, which may include the costs of necessary food, clothing, shelter, education, and health care including health insurance premiums for the child. The duty includes any obligation to make monetary payment, to pay expenses or to reimburse another person or an agency for the cost of necessary support furnished a dependent child. The duty may be imposed by court order, by operation of law, or otherwise.
(9) "Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
(10) "Employer" includes the United States government, a state or local unit of government, and any person or entity who pays or owes income to the obligor.
(11) "Income" means any form of periodic payment to an individual, regardless of source, including, but not limited to, wages, salary, bonus, commission, compensation for services rendered or goods sold, compensation as an independent contractor; and notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy support obligations, specifically includes periodic payments pursuant to pension and annuity or retirement programs, or disability or insurance policies of any type, with the following exceptions:
(a) Unemployment compensation payments made under chapter 13, title 72, Idaho Code, shall be exempt from the provisions of this chapter, and shall only be withheld pursuant to the provisions of section 72-1365, Idaho Code, and chapter 12, title 7, Idaho Code;
(b) Worker’s compensation payments made under chapter 8, title 72, Idaho Code, shall be exempt from the provisions of this chapter, and shall only be withheld pursuant to the provisions of section 72-802, Idaho Code, and chapter 12, title 7, Idaho Code;
(c) Public assistance payments made under title 56, Idaho Code, shall be exempt from the provisions of this chapter.
(12) "Obligee" means any person, state agency or bureau entitled by order to receive child support payments or child and spousal support payments, or the person or agency to whom the right to receive or collect support has been assigned.
(13) "Obligor" means any person obligated by order to pay child or spousal support.
(14) "Spousal support" means a legally enforceable obligation assessed against an individual for the support of a spouse or former spouse who is living with a child or children for whom the individual also owes support.
(15) "Support order" means a judgment, decree, or order issued by a magistrate or district court of the state of Idaho creating a duty of support for a minor child, spouse or former spouse, as herein defined; or a judgment, decree, order or administrative ruling issued by a court or agency of competent jurisdiction in another state or country, creating a duty of support for a minor child, spouse or former spouse, as herein defined, which has been registered or otherwise made enforceable in this state.
[32-1202, added 1986, ch. 222, sec. 1, p. 594; am. 1993, ch. 335, sec. 1, p. 1244; am. 1993, ch. 335, sec. 8, p. 1255; am. 1994, ch. 308, sec. 4, p. 967; am. 1998, ch. 292, sec. 7, p. 936.]
(1) The remedies provided in this chapter are in addition to, and not in substitution for, any other remedies provided by law.
(2) The provisions of this chapter apply to any dependent child, whether born before or after the effective date of this act, and regardless of the past or current marital status of the parents.
[32-1203, added 1986, ch. 222, sec. 1, p. 595.]
(1) The court shall order income withholding in all support orders effective the date of the order unless an exception is granted by the court pursuant to subsection (2) of this section. All support orders shall notify the obligor that income withholding shall be enforced by a withholding order issued to the obligor’s employer, without additional notice to the obligor.
(2) Immediate income withholding shall not be ordered if:
(a) One (1) of the parties demonstrates and the court makes a specific written finding that there is good cause not to require immediate income withholding. A finding of good cause by the court must be based on, at a minimum:
(i) A written determination and explanation of why implementing immediate withholding would not be in the best interests of the child; and
(ii) Proof of timely payment of previously ordered support in cases involving the modification of support orders; or
(b) A written agreement is reached between the obligor and obligee and the department in cases where the department is providing child support services, which provides for an alternative arrangement, and such agreement is determined by the court to be in the best interests of the child.
(3) Failure to provide for income withholding does not affect the validity of the support order.
[(32-1204), added 1986, ch. 222, sec. 1, p. 596; am. 1990, ch. 361, sec. 1, p. 974; am. 1993, ch. 335, sec. 2, p. 1246; am. 1993, ch. 335, sec. 9, p. 1256; am. and redesig. 1998, ch. 292, sec. 8, p. 937.]
If a support order does not include immediate income withholding, the obligor is subject to income withholding upon a delinquency at least equal to the child support payment for one (1) month, without the need for a judicial or administrative hearing.
[32-1205, added 1998, ch. 292, sec. 9, p. 939.]
(1) A proceeding to enforce a duty of support is commenced:
(a) By filing a petition or complaint for an original action; or
(b) By motion in an existing action or under an existing case number.
(2) Venue for the action is in the district court of the county where the dependent child resides or is present, where the obligor resides, or where the prior support order was entered. The petition or motion may be filed by the obligee, the state, or any agency providing care or support to the dependent child.
(3) A filing fee shall not be assessed in cases brought on behalf of the state of Idaho.
(4) A petition or motion shall include a sworn statement by the obligee, stating the facts authorizing the issuance of the income withholding order, pursuant to section 32-1204 or 32-1205, Idaho Code, and:
(a) The name, address, and social security number of the obligor;
(b) A copy of the support order;
(c) The name and address of the obligor’s employer;
(d) The amount of any delinquency; and
(e) In cases not filed by the state, whether the obligee has received public assistance from any source on behalf of the minor child, and, if so, from which source(s).
(5) Upon receipt of a petition or motion, the court shall issue an income withholding order pursuant to section 32-1204 or 32-1205, Idaho Code, to the employer utilizing the required income withholding for support form and shall provide a form for an answer to the income withholding order which shall be returned to the court within ten (10) days. The court shall also order the employer to remit the amount withheld to the department of health and welfare within seven (7) business days after the date the amount would have been paid or credited to the obligor. The department shall supply each county with the required income withholding for support form and answers including:
(a) The maximum amount of current support, if any, to be withheld from the obligor’s earnings each month, or from each earnings disbursement;
(b) The total amount of the arrearage or reimbursement judgment previously entered by the court, if any, together with interest, if any; and
(c) The amount of arrearage payments specified in the support order, if any.
(6) If the petition or motion indicates the obligee has received public assistance from any source on behalf of a minor child, the clerk shall immediately forward a copy of the petition or the motion to the department.
(7) The court retains continuing jurisdiction under this chapter until all duties of support of the obligor, including any delinquency, have been satisfied or until the order is otherwise unenforceable.
[32-1206, added 1986, ch. 222, sec. 1, p. 596; am. 1993, ch. 335, sec. 3, p. 1247; am. 1993, ch. 335, sec. 10, p. 1258; am. 1998, ch. 292, sec. 10, p. 939; am. 2013, ch. 248, sec. 1, p. 598; am. 2025, ch. 201, sec. 3, p. 913.]
Upon application by any obligee or obligor, the department may order income withholding pursuant to this chapter for payment of current support, any delinquency, and costs or fees pursuant to a support order as follows:
(1) If the support order provides for immediate income withholding pursuant to section 32-1204, Idaho Code, the department shall commence income withholding.
(2) If the support order does not provide for immediate income withholding, the department shall commence income withholding upon a delinquency, and shall also notify the obligor:
(a) Of the amount of the delinquency owed and the amount of income withheld;
(b) That the provision applies to all subsequent employers;
(c) Of the right to request an administrative review; and
(d) That the review is limited to mistakes of fact, which means an error in the amount of current support or delinquency, or the identity of the alleged obligor, and that no issues may be considered that have been litigated previously. If the obligor requests an administrative review within fourteen (14) days from the day the notice was mailed, the collection of arrears by income withholding shall be stayed. The department shall review the income withholding order within thirty-five (35) days, issue a decision and amend or void the income withholding order, if necessary. Any amounts which are found to have been withheld in error due to a mistake of fact will be returned to the obligor or credited towards the obligor’s future payments.
[32-1207, added 1998, ch. 292, sec. 11, p. 941.]
(1) The following items and documents shall be served on the employer personally or by any form of mail requiring a return receipt:
(a) Two (2) conformed copies of the income withholding order, one (1) of which is for the employer, and one (1) for the obligor;
(b) Four (4) answer forms in substantial compliance with section 32-1210, Idaho Code;
(c) Three (3) stamped envelopes provided by the obligee and addressed to, respectively, the person or entity designated in the income withholding order, the obligee’s attorney or the obligee, and the obligor.
(2) On or before the date of service of the income withholding order on the employer, the obligee shall mail or cause to be mailed by certified mail a copy of the income withholding order to the obligor at the obligor’s last known post-office address.
[(32-1208), added 1986, ch. 222, sec. 1, p. 601; am. & redesig. 1998, ch. 292, sec. 12, p. 941.]
(1) The department shall send the income withholding order to the employer by certified mail.
(2) At the same time the withholding order is mailed to the employer, the department shall mail a copy of the income withholding order to the obligor at the obligor’s last known post-office address.
[32-1209, added 1998, ch. 292, sec. 13, p. 941.]
(1) Upon receiving an income withholding order from the court, the employer shall answer the income withholding order on forms supplied with the income withholding order within ten (10) days after the date of service. The employer shall deliver the original answer to the court, and shall mail one (1) copy to the obligee or obligee’s attorney, and shall deliver one (1) copy to the obligor as soon as is reasonably possible. The answer shall state whether the obligor is employed by or receives income from the employer, whether the employer will honor the income withholding order, and whether there are multiple child support income withholding orders or garnishments against the obligor. Upon receiving an income withholding order from the department, the employer shall begin income withholding pursuant to this section.
(2) If the employer possesses any income due and owing to the obligor, the income subject to the income withholding order shall be withheld immediately upon receipt of the income withholding order. The withheld income shall be delivered to the department of health and welfare within seven (7) business days after the date the amount would have been paid or credited to the employee.
(3) The total amount to be withheld from the obligor’s earnings each month, or from each earnings disbursement, shall not exceed fifty percent (50%) of the disposable earnings of the obligor. If the amounts to be paid toward the arrearage are specified in the support order, then the maximum amount to be withheld is the sum of the current support ordered and the amount ordered to be paid toward the arrearage, or fifty percent (50%) of the disposable earnings of the obligor, whichever is less. In no event shall the amount to be withheld from the earnings of the obligor exceed the amount specified in section 11-207, Idaho Code.
(4) When an employer receives an income withholding order issued by another state, the employer shall apply the income withholding law of the state of the obligor’s principal place of employment in determining:
(a) The employer’s fee for processing an income withholding order;
(b) The maximum amount permitted to be withheld from the obligor’s income;
(c) The time periods within which the employer must implement the income withholding order and forward the child support payment;
(d) The priorities for withholding and allocating income withheld for multiple child support obligees; and
(e) Any withholding terms or conditions not specified in the income withholding order.
(5) If an obligor is subject to two (2) or more income withholding orders for child support on behalf of more than one (1) obligee, the employer shall send the entire amount withheld from that obligor to the department. If the department is providing child support services, the employer shall send the department a copy of each income withholding order under which the obligor owes a support obligation. The department shall apportion the amount of income withheld between all obligees of the obligor as follows: the support obligation for the current month shall be paid first. If the amount of nonexempt disposable income withheld is not sufficient to pay the total support obligation for the current month for each obligee for whom there is an income withholding order, the amount withheld shall be divided between each obligee for whom there is an income withholding order on a pro rata basis. If the amount of the nonexempt disposable earnings withheld is in excess of the total support obligation for the current month for each obligee for whom there is an income withholding order, the excess shall be divided between each obligee for whom there is an income withholding order which includes withholding for any delinquency on a pro rata basis unless otherwise ordered by a court.
(6) The employer shall continue to withhold the ordered amounts from nonexempt income of the obligor until notified by the court or the department that the income withholding order has been modified or terminated. The employer shall promptly notify the court or the department when the employee is no longer employed, and of the employee’s last known address, and the name and address of his new employer, if known.
(7) The employer may deduct a processing fee, not to exceed five dollars ($5.00), to cover the costs of each withholding. Such fee is to be withheld from the obligor’s income in addition to the amount withheld to satisfy the withholding order, but the total amount withheld, including the fee, shall not exceed fifty percent (50%) of the obligor’s disposable income.
(8) The employer may combine amounts withheld from various employees for a particular entity in a pay period into a single payment for that pay period, as long as the portion thereof which is attributable to each individual employee is separately designated.
(9) An order for income withholding for support entered under this chapter shall have priority over any other wage assignment or garnishment, except for another wage assignment, income withholding order, or garnishment for child support.
[32-1210, added 1986, ch. 222, sec. 1, p. 599; am. 1995, ch. 201, sec. 2, p. 693; am. 1998, ch. 292, sec. 14, p. 942; am. 2013, ch. 248, sec. 2, p. 599.]
(1) An employer may not discharge, discipline, or refuse to employ an obligor on the basis of an income withholding order issued under this chapter. If an employer discharges, disciplines, or refuses to employ an obligor because of an income withholding obligation, the obligor shall have a cause of action against the employer. The employer shall be liable for double the amount of lost wages and other damages suffered as a result of the violation and for costs and reasonable attorney’s fees, and may be subject to a civil penalty of up to three hundred dollars ($300) for each violation. In addition, the employer may also be ordered to hire, rehire, or reinstate the aggrieved obligor.
(2) An employer who knowingly fails to retain and remit to the department an amount pursuant to the income withholding order shall be liable to the department for the amount to be retained specified in the income withholding order and may be subject to a fine of up to one hundred dollars ($100), which is a debt due and owing to the department unless:
(a) The employer notifies the department that the obligor is not in his employ and the department verifies the obligor’s nonemployment and withdraws its income withholding order; or
(b) The obligor’s income is not sufficient and therefore the restrictions in section 11-207, Idaho Code, apply and a lesser amount must be withheld.
(3) No employer who complies with an income withholding order that is regular on its face shall be subject to civil liability to any individual or agency for conduct in compliance with the income withholding order.
[32-1211, added 1998, ch. 292, sec. 15, p. 944.]
Obligors and obligees shall file with the court or the department, if the department is providing child support services, identifying information including social security number, residential and mailing address, telephone number, driver’s license number, and name, address, and telephone number of their employer. Obligors and obligees shall provide written notification of any changes within thirty (30) days after such change.
[32-1212, added 1998, ch. 292, sec. 16, p. 944.]
(1) A proceeding to enforce a support order directing the payment of medical expenses of a dependent child may be commenced as provided in section 32-1206, Idaho Code.
(2) The petition or motion may be filed by an obligee when medical expenses not otherwise covered by insurance have been incurred in the amount of one hundred dollars ($100) or more, or when insurance premiums, deductibles, or payments on submitted claims for which payment or reimbursement is claimed to be due from the obligor equal or exceed one hundred dollars ($100). The petition or motion shall include a sworn statement by the obligee, stating the facts authorizing the issuance of the order, including:
(a) An itemization of the medical expenses, including a specific reference to any insurance premiums, deductibles, or payments on submitted claims for which payment or reimbursement is sought from the obligor;
(b) Whether such expenses have been submitted to any applicable insurance carrier or other third party payer and the results of such submission;
(c) That the obligor, stating his or her name, residence and social security number has failed or refused to pay the medical expenses or to reimburse the obligee therefor;
(d) A description of the terms of the support order requiring payment of the medical expenses claimed to be due.
(3) Upon the filing of a petition or motion and affidavit containing the information required in subsection (2) of this section, the clerk of the court shall set a hearing thereon. The obligee shall serve a copy of the petition or motion, accompanying affidavit and notice of hearing on the obligor at least ten (10) days before the date set for hearing, by personal service or certified mail, pursuant to the Idaho rules of civil procedure.
(4) After hearing, the court shall enter its order directing payment of the specific sums, if any, for which the obligor is found to be liable for previously incurred medical expenses. In addition, if the court determines that some or all of the medical expenses of the dependent child are of an ongoing or recurring nature and the anticipated amounts thereof are capable of determination to the satisfaction of the court, the court may order payment to the obligee of a specific sum per month toward such expenses.
(5) For purposes of this section "medical expenses" means any and all costs and expenses related to the health care of a dependent child, including insurance premiums and any deductible amounts, all or a portion of which are ordered to be paid by the obligor in addition to any amount awarded as child support, pursuant to a support order.
[(32-1213), added 1992, ch. 265, sec. 1, p. 820; am. & redesig. 1998, ch. 292, sec. 17, p. 945.]
The state of Idaho has an interest in ensuring that its children receive health insurance benefits through private means when available at reasonable cost as defined in section 32-1214B, Idaho Code. Therefore, the legislature hereby adopts the national medical support notice required by 42 U.S.C. section 666(a)(19) and the employee retirement income security act, 29 U.S.C. section 1169(a), to allow the department of health and welfare or an obligee to enforce an order for medical support.
[32-1214A, added 2003, ch. 304, sec. 2, p. 834; am. 2008, ch. 328, sec. 2, p. 900.]
For the purposes of this chapter, the following definitions apply:
(1) "Child" means any child including an adopted minor child, of a participant in a health benefit plan, recognized under a medical child support order as having a right to enrollment under a health benefit plan.
(2) "Department" means the department of health and welfare.
(3) "Health benefit plan" means a group or individual health benefit plan or combination of plans, other than public assistance programs, that provides medical care or benefits for a child.
(4) "Insurer" means every person engaged as indemnitor, surety or contractor in the business of entering into contracts of insurance or annuity.
(5) "Medical child support order" means any order, including those that meet the requirements of 29 U.S.C. section 1169, or notice issued by either a court or administrative agency that requires a plan administrator, or if none, the employer, to enroll an eligible child in a health benefit plan.
(6) "Obligee" means a party or parent other than the parent ordered to carry or provide a health benefit plan for the parties’ minor child.
(7) "Obligor" means the parent ordered by the court to carry or provide health insurance benefits for the parties’ minor child.
(8) "Party" means the department, grandparent or any person who is the custodian, other than the parent who owes a duty of medical support.
(9) "Plan administrator" means a person or entity, designated under the terms of the health benefit plan or health insurance policy or related contract or agreement, responsible for the administration of plan duties. If no plan administrator is designated under the terms of the policy, contract or agreement, the plan administrator is the plan sponsor.
(10) "Plan sponsor" means an employer, employee organization, association, committee, joint board of trustees, or other similar group, including a state or local government agency or church, that establishes or maintains an employee benefit plan.
(11) "Reasonable cost" means the cost to the obligor does not exceed five percent (5%) of his or her gross income.
[32-1214B, added 2003, ch. 304, sec. 3, p. 834; am. 2005, ch. 101, sec. 1, p. 320; am. 2008, ch. 328, sec. 3, p. 900.]
(1) A medical support notice issued to an employer or plan administrator is a qualified medical support order as defined by 29 U.S.C. section 1169(a) through (c).
(2) Upon receipt of a national medical support notice, if the employer has one (1) health benefit plan, the employer shall respond within twenty (20) business days and confirm that the child will be enrolled or explain that one (1) of the conditions identified in section 32-1214D, Idaho Code, exists. The employer shall provide the national medical support notice to the plan administrator within twenty (20) business days.
(3) Upon receipt of a national medical support notice from an employer, the plan administrator shall notify the department or other obligee within forty (40) business days that a health benefit plan will become available for the child, or explain that one (1) of the conditions identified in section 32-1214D, Idaho Code, exists. The plan administrator shall also notify the department or other obligee of any additional steps that need to be taken to complete enrollment. The plan administrator shall notify the department or other obligee when the notice has not been properly filled out, listing the specific deficiencies.
(4) If more than one (1) plan is available, the child shall be enrolled in the obligor’s plan. If the obligor has not chosen a health benefit plan, the plan administrator or employer shall provide plan descriptions to the department or other obligee within twenty (20) business days. If the department is enforcing the medical support order, the department shall notify the other obligee of the opportunity to choose the health benefit plan within twenty (20) business days. If for any reason the other obligee does not or is not available to choose, the department shall choose the least expensive health benefit plan available to the obligor.
(5) The employer shall withhold any required premium from the obligor’s income or wages. The amount to be withheld from the income of the obligor shall not exceed the amount specified in section 11-207, Idaho Code. The employer shall forward the premium withheld to the insurer. If the amount of income taken for child support along with the amount taken for medical support exceeds the amount specified in section 11-207, Idaho Code, child support shall be paid first.
(6) The plan administrator or employer shall provide the department or other obligee with the name of the insurer, the extent of coverage available and other necessary information, and shall make available any necessary claim forms or enrollment membership cards.
(7) An insurer shall not impose requirements on a state agency, which has been assigned the rights of an individual who is eligible for medical assistance, that are different than the requirements that apply to an agent or assignee of any other covered individual.
(8) A child covered by a qualified medical child support order, or the child’s custodial parent, legal guardian, or the provider of services to the child, or a state agency to the extent assigned the child’s rights, may file claims and the plan shall make payment for covered benefits or reimbursement directly to such party.
(9) An insurer shall not consider the availability or eligibility for medical assistance under medicaid, 42 U.S.C. section 1396a., in this or any other state when considering eligibility for health benefits or making payments under its plan. To the extent that payment has been made by medicaid, the department is subrogated to the rights of the individual to payment by any other third party for covered health care items or services.
[32-1214C, added 2003, ch. 304, sec. 4, p. 835.]
The plan administrator or employer shall enroll the child unless the employer or insurer does not offer insurance, the obligor would not qualify for any plan, or the obligor has separated from employment. If insurance is not available because a probationary period exceeds ninety (90) days, the plan administrator or employer shall return the notice to the employer and the department without enrolling the child. If insurance is not available during a probationary period that is ninety (90) days or less, or if ninety (90) days or less remains from a longer waiting period, the plan administrator shall process the enrollment, and notify the employer, the department or other obligee, of the effective date of coverage.
[32-1214D, added 2003, ch. 304, sec. 5, p. 836.]
A child shall not be denied enrollment in a health benefit plan because:
(1) The child was born out of wedlock;
(2) The child is not claimed as a dependent on the obligor’s federal income tax return;
(3) The child does not reside with the obligor or in the insurer’s service area; or
(4) There is no current enrollment season.
[32-1214E, added 2003, ch. 304, sec. 6, p. 836.]
Any support order or decree that requires a child to be covered by a health benefit plan issued after July 1, 2003, shall include a statement in substantially the following form:
"Failure to provide medical insurance coverage may result in the direct enforcement of a medical support order by either the obligee or the Department of Health and Welfare. A national medical support notice will be sent to your employer, requiring your employer to enroll the child in a health benefit plan as provided by Sections 32-1214A through 32-1214J, Idaho Code.".
[32-1214F, added 2003, ch. 304, sec. 7, p. 837; am. 2025, ch. 201, sec. 4, p. 914.]
(1) In any case for which an assignment of medical support is in effect, the department shall petition the court to include health insurance that is available through employment or another group health benefit plan to either parent, and the department shall take any action necessary to ensure that one (1) parent secures and maintains medical insurance required by the support order.
(2) An obligor may request an administrative review within twenty (20) days after a notice of intent to enroll one (1) or more children in a health benefit plan is mailed by the department.
(3) The department shall cancel a notice of intent to enroll or a national medical support notice if the parent does not owe medical support, the parent is no longer obligated to provide medical support, or medical support other than medicaid is already being provided by either parent.
[32-1214G, added 2025, ch. 201, sec. 6, p. 914.]
If the order for health benefits fails to provide for direct enforcement, the department or other obligee may serve a written notice of intent to enforce the order on the obligor by mail or personal service. If the obligor fails to provide written proof that health benefits have been obtained or applied for within twenty (20) business days of service of the notice, or within twenty (20) business days of health benefits becoming available, the department or other obligee may proceed to enforce the order directly by sending the notice prescribed by section 32-1214C, Idaho Code.
[32-1214H, added 2003, ch. 304, sec. 9, p. 837.]
The plan administrator or employer shall not disenroll or eliminate health benefits of any such child unless:
(1) A certified copy of an order terminating the obligation to provide health benefits is provided to a plan administrator or employer;
(2) Confirmation has been received by the plan administrator or employer that the child is enrolled in another comparable health benefit plan;
(3) The employer has eliminated family health benefit plans for all of its employees;
(4) The obligor has separated from employment;
(5) The child is no longer eligible for coverage under the terms of the plan; or
(6) The required premium has not been paid by or on behalf of the child.
[32-1214I, added 2003, ch. 304, sec. 10, p. 837.]
The plan administrator or employer shall notify the department or other obligee within twenty (20) days when health benefits are no longer available and state the reason why.
[32-1214J, added 2003, ch. 304, sec. 11, p. 838.]
(1) An obligor whose income is subject to withholding under this chapter may request a hearing to quash, modify, or terminate the withholding, by filing a motion requesting such relief before the court which issued the income withholding order. A copy of the motion and a notice of hearing shall be served upon the obligee in the time and in the manner provided by the Idaho rules of civil procedure.
(2) In a hearing to quash, modify, or terminate the income withholding order, the court may grant relief only upon a showing by the obligor that there is a substantial probability that the obligor would suffer irreparable injury and that the obligee would not suffer irreparable injury. Satisfaction by the obligor of any delinquency subsequent to the issuance of the income withholding order is not grounds to quash, modify, or terminate the income withholding order.
(3) If an income withholding order has been in operation for twelve (12) consecutive months and the obligor’s support obligation is current, the court may terminate the order upon motion of the obligor, unless the obligee can show good cause as to why the income withholding order should remain in effect.
(4) No order to quash, modify, or terminate an income withholding order shall be issued unless the obligor provides proof to the court that the obligee has been served with a copy of the motion and notice for hearing in the time and in the manner provided by the Idaho rules of civil procedure, or that service is impossible because the obligee has moved and failed to provide the court with a current address, as required by section 32-1212, Idaho Code.
[32-1215, added 1998, ch. 292, sec. 19, p. 948; am. 2007, ch. 2, sec. 1, p. 3; am. 2011, ch. 33, sec. 1, p. 76.]
The court may quash, modify or terminate an income withholding order upon written request therefor by the obligee, unless the court finds that the termination would not be in the best interests of the dependent child.
[32-1216, added 1998, ch. 292, sec. 20, p. 948.]
If the department is unable to deliver payments under the income withholding order for a period of three (3) months due to the failure of the obligee to notify the department of a change of address, the court shall terminate the income withholding order, and shall mail a copy of the termination order to the employer and to the obligor. The court shall return all undeliverable payments to the obligor.
[32-1217, added 1998, ch. 292, sec. 21, p. 949; am. 2007, ch. 2, sec. 2, p. 4.]
(1) Each parent subject to a child support order that is being enforced by the department shall be notified of the right to request a review of the order by the department every thirty-six (36) months. Reviews shall not be conducted more frequently unless there has been a substantial and material change in circumstances, including but not limited to:
(a) An increase or decrease in income or assets of either parent or other person legally obligated for the support of a child;
(b) A substantial change in the needs of the child; or
(c) A change in custody or visitation rights of the non-custodial parent.
(2) A support order shall be reviewed for possible modification:
(a) If requested by either parent;
(b) If requested by any state, tribal, or foreign child support services agency; or
(c) Automatically, at least every thirty-six (36) months, in any case where either parent is receiving support pursuant to 42 U.S.C. 601 et seq.
(3) After a review pursuant to this section, each parent shall be notified of the outcome. The department shall only seek a modification of a support order if the review results in an obligation that differs from the existing order by at least fifteen percent (15%), but not less than fifty dollars ($50.00) per month.
[32-1218, added 2025, ch. 201, sec. 7, p. 915.]
(1) Any county or city may by ordinance establish and enforce the offense of failure to supervise a child as provided in this section.
(2) The ordinance may provide that a person who is the parent, lawful guardian with legal and physical custody or other person, except a foster parent, lawfully charged with the care or custody of a child under sixteen (16) years of age commits the offense of failure to supervise a child if the child:
(a) Commits an act bringing the child within the purview of the juvenile corrections act, chapter 5, title 20, Idaho Code, or commits a crime for which the child is required to be tried as an adult, or for which jurisdiction under the juvenile corrections act is subject to waiver pursuant to chapter 5, title 20, Idaho Code; or
(b) Fails to attend school or is not comparably instructed, as provided in section 33-202, Idaho Code; or
(c) Violates a curfew law of the county or city enacting the ordinance authorized under this section.
(3) (a) A person shall not be subject to prosecution under an ordinance containing the provisions of subsection (2)(a) of this section if the person:
(i) Is the victim of the act bringing the child within the purview of the provisions of chapter 5, title 20, Idaho Code; or
(ii) Reported the act of the child to the local law enforcement agency, the juvenile court, the department of health and welfare or other appropriate authority as provided in the ordinance;
(b) A person shall not be subject to prosecution under an ordinance containing the provisions of subsection (2)(a), (b) or (c) of this section if the person shows to the satisfaction of the court that the person took reasonable steps to control the conduct of the child at the time the person is alleged to have failed to supervise the child.
(4) Except as provided in subsection (5) of this section, the ordinance may provide that in a prosecution for failure to supervise a child the court may order the person to pay restitution to or make whole any victim who suffers an economic loss as a result of the juvenile’s conduct in accordance with the standards and requirements of sections 19-5304 and 19-5305, Idaho Code, provided that the restitution ordered to be paid shall not exceed twenty-five hundred dollars ($2,500).
(5) The ordinance may provide that when a child commits any of the acts set forth in subsection (2) of this section, the parent, lawful guardian with legal and physical custody or other person lawfully charged with the care or custody of the child may be charged, by citation or summons, with the offense of failure to supervise a child, unless the person with lawful custody is a foster parent. Upon a first offense, the officer may serve a copy of the ordinance upon the parent, lawful guardian with legal and physical custody or other person, other than a foster parent, as a warning of the penalties. This service shall be documented by the officer.
(6) An ordinance enacted pursuant to this section shall provide that if a person is found guilty or pleads guilty to the offense of failure to supervise a child, the person shall be guilty of a misdemeanor and shall be subject to a fine of not more than one thousand dollars ($1,000). The ordinance may provide that, in lieu of imposing a fine, the court, with the consent of the person, may order the person to complete parenting classes or undertake other treatment or counseling, as approved by the court, and upon the person’s completion of the classes, treatment or counseling to the satisfaction of the court, the court may discharge the person or if the person fails to complete the program to the satisfaction of the court, the court may impose the penalty provided in this section. The ordinance may provide that any person violating the orders of the court entered under the ordinance shall be subject to contempt proceedings in accordance with chapter 6, title 7, Idaho Code, in addition to any other penalties authorized pursuant to this section.
(7) The ordinance may provide that the juvenile court has jurisdiction over a first offense of failing to supervise a child and that any subsequent offense shall be subject to the jurisdiction of the magistrate’s division of the district court, or may provide that any offense of failing to supervise the child shall be subject to the jurisdiction of the juvenile court or to the jurisdiction of the magistrate’s division of the district court.
(8) Conviction of a person under an ordinance enacted under the authority of this section shall not preclude any other action or proceedings against the person which may be undertaken pursuant to the provisions of chapter 5, title 20, Idaho Code, or other provisions of law.
[32-1301, added 1996, ch. 359, sec. 1, p. 1207; am. 1997, ch. 264, sec. 1, p. 754; am. 2012, ch. 257, sec. 8, p. 715.]
The legislature finds that there is an increasing incidence of children and family members in more than one (1) court proceeding, including juvenile corrections, domestic violence, domestic relations, adoptions, and child protection actions, and there is a need to coordinate these diverse cases and related family services to provide an effective response to the needs of these children and families.
[32-1401, added 2001, ch. 338, sec. 1, p. 1199.]
The legislature declares that an effective response to address the needs of families and children in resolving these disputes would include the following:
(1) Case management practices that provide a flexible response to the diverse court-related needs of families involved in multiple court cases which will promote the efficient use of time and resources of the parties and the court, and avoid conflicting court orders;
(2) The expansion of available nonadversarial methods of dispute resolution, including mediation of child custody and visitation disputes and alternative dispute resolution assessments;
(3) Coordination of family dispute issues with related litigation involving the juvenile correction laws and criminal laws;
(4) A family court services coordinator to assist families in need to connect with appropriate resources for the family, to provide assessment information to the court to assist in early case resolution, and to conduct workshops which will educate the parties on the adverse impact of high conflict family disputes upon children, identify the developmental needs of children, and emphasize the importance of parenting plans and mediation techniques which peacefully resolve child custody and visitation issues;
(5) A court assistance officer to provide assistance to parties without legal representation to help them understand the legal requirements of the court system, including educational materials, court forms, assistance in completing court forms, information about court procedures, and referrals to public and community agencies and resources that provide legal and other services to parents and children;
(6) A domestic violence court coordinator to assist in the effective operation of a domestic violence court and to serve victims and families involved in domestic violence court proceedings;
(7) Supervised visitation by trained providers to assure the safety and welfare of children in cases where certain risk factors are identified; and
(8) The adoption of other methods and procedures which will promote a timely and effective resolution of related disputes in court cases involving children and families.
[32-1402, added 2001, ch. 338, sec. 1, p. 1199; am. 2009, ch. 79, sec. 1, p. 218.]
The supreme court may establish a committee consisting of representatives of the judicial, executive and legislative branches to implement a coordinated family court services plan for a comprehensive response to children and families in the courts. The committee shall recommend, for adoption by the supreme court, policies and procedures that will carry out the purposes of this chapter.
[32-1403, added 2001, ch. 338, sec. 1, p. 1200.]
The supreme court shall conduct a study measuring the effectiveness of an appropriation for family court services and report the results of its study to the governor and to the legislature by the first day of the legislative session.
[32-1404, added 2001, ch. 338, sec. 1, p. 1200.]
Subject to the appropriation power of the legislature, the supreme court shall be responsible for administering, allocating and apportioning all funding resources for children and family court services, including grants, contributions, and appropriations from the legislature, to each judicial district upon their submission of an appropriate plan for family court services.
[32-1405, added 2001, ch. 338, sec. 1, p. 1200.]
(1) The supreme court is hereby authorized to establish a statewide uniform schedule of fees to assist counties in defraying the costs of providing legal forms and other written materials, training on the use of forms and distributed materials, and other court services that are furnished in connection with court assistance offices and coordinated family services. The supreme court schedule of fees shall be reasonably related to and shall not exceed the actual costs involved in furnishing the materials, training or other services.
(2) The supreme court shall provide for a waiver or partial waiver of fees for those persons who are unable to pay the fees.
(3) The fees established in the supreme court schedule shall be collected through the clerk of the district court of the county in which the materials, training, or other services are furnished, and the clerk shall pay them over to the county treasurer for deposit into the county district court fund. Subject to the budgetary process of the county, the moneys so deposited into the district court fund shall be dedicated to the objects and purposes identified in this section.
[32-1406, added 2004, ch. 322, sec. 1, p. 905.]
Prior to appointment, and at his or her own cost, a family court services coordinator or a domestic violence court coordinator shall submit to a fingerprint-based criminal history check through any law enforcement office in the state providing such a service. The criminal history check shall include a statewide criminal identification bureau check, federal bureau of investigation criminal history check, child abuse registry check, adult protection registry check and statewide sex offender registry check. A record of all background checks shall be maintained in the office of the supreme court of the state of Idaho.
[32-1407, added 2007, ch. 25, sec. 1, p. 48; am. 2009, ch. 79, sec. 2, p. 219.]
The legislature finds that:
(1) Domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community. Families experiencing domestic violence are often involved in more than one (1) court proceeding including divorce and custody cases, as well as civil and criminal proceedings regarding domestic violence, substance abuse and child protection. Substantial state and county resources are required each year for the incarceration, supervision and treatment of batterers.
(2) Domestic violence courts hold offenders accountable, increase victim safety, provide greater judicial monitoring and coordinate information to provide effective interaction and use of resources among the courts, justice system personnel and community agencies. Effective case management and coordination ensure that decisions in one (1) case do not conflict with existing orders in other civil and criminal cases and provide courts with the necessary information to protect victims and families.
(3) Domestic violence courts have proven effective in reducing recidivism and increasing victim safety. It is in the best interests of the citizens of this state to expand domestic violence courts to each judicial district.
[32-1408, added 2009, ch. 79, sec. 3, p. 219.]
(1) The district court in each county may establish a domestic violence court in accordance with the policies and procedures adopted by the supreme court based upon recommendations by the committee as authorized pursuant to section 32-1403, Idaho Code.
(2) The committee shall recommend policies and procedures for domestic violence courts addressing eligibility, identification and screening, assessment, treatment and treatment providers, case management and supervision, judicial monitoring, supervision of progress and evaluation. The committee shall also solicit specific domestic violence court plans from each judicial district, recommend funding priorities for each judicial district and provide training to ensure the effective operation of domestic violence courts.
(3) No person has a right to be admitted into a domestic violence court.
[32-1409, added 2009, ch. 79, sec. 4, p. 219.]
(1) Each person who is found guilty of or pleads guilty to any of the following alcohol-, substance abuse- or domestic violence-related offenses shall pay a thirty dollar ($30.00) fee to be deposited in the statewide drug court, mental health court and family court services fund, as provided in section 1-1625, Idaho Code, to assist in funding the domestic violence courts:
(a) Section 18-918, Idaho Code (domestic violence);
(b) Section 18-920, Idaho Code (violation of no contact order);
(c) Section 18-923, Idaho Code (attempted strangulation);
(d) Section 18-1502, Idaho Code (beer, wine or other alcohol age violations);
(e) Section 18-2510(3), Idaho Code (introduce, convey, possess, receive, obtain or remove major contraband, except major contraband as defined in section 18-2510(5)(c)(ii), (iv) and (v), Idaho Code);
(f) Section 18-4006 (3)(b), Idaho Code (vehicular manslaughter in the commission of a violation of section 18-8004 or 18-8006, Idaho Code);
(g) Section 18-5414, Idaho Code (intentionally making false statements);
(h) Section 18-8004, Idaho Code (persons under the influence of alcohol, drugs or any other intoxicating substances);
(i) Section 18-8006, Idaho Code (aggravated driving while under the influence of alcohol, drugs or any other intoxicating substances);
(j) Section 23-312, Idaho Code (persons under twenty-one and intoxicated persons — inhibited sales);
(k) Section 23-505, Idaho Code (transportation of alcoholic beverages);
(l) Section 23-602, Idaho Code (unlawful manufacture, traffic in, transportation and possession of alcohol beverage);
(m) Section 23-603, Idaho Code (dispensing to minor);
(n) Section 23-604, Idaho Code (minors — purchase, consumption or possession prohibited);
(o) Section 23-605, Idaho Code (dispensing to drunk);
(p) Section 23-612, Idaho Code (beer, wine or other alcoholic beverages on public school grounds);
(q) Section 23-615, Idaho Code (restrictions on sale);
(r) Section 23-949, Idaho Code (persons not allowed to purchase, possess, serve, dispense or consume beer, wine or other alcoholic liquor);
(s) Section 23-1013, Idaho Code (restrictions concerning age);
(t) Section 23-1024, Idaho Code (false representation as being twenty-one or more years of age a misdemeanor);
(u) Section 23-1333, Idaho Code (open or unsealed containers of wine in motor vehicles on highways prohibited);
(v) Section 23-1334, Idaho Code (minors — authorization to deliver);
(w) Criminal violation of any of the provisions of chapter 27, title 37, Idaho Code;
(x) Section 39-6312, Idaho Code (violation of order — penalties);
(y) Section 67-7034, Idaho Code (persons under the influence of alcohol, drugs or any other intoxicating substances); and
(z) Section 67-7114, Idaho Code (operation under the influence of alcohol, drugs or any other intoxicating substance).
(2) The clerk of the district court shall collect the fees set forth in subsection (1) of this section. The fees shall be paid over to the county treasurer who shall, within fifteen (15) days after the end of the month, pay such fees to the state treasurer for deposit into the drug court, mental health court and family court services fund.
[32-1410, added 2009, ch. 79, sec. 5, p. 220; am. 2012, ch. 82, sec. 4, p. 239; am. 2023, ch. 78, sec. 8, p. 267.]
(1) This chapter is enacted to bring the state into compliance with the requirements of P.L. 104-193, sec. 372, and title IV-D of the social security act and to make the financial institution data match process an effective enforcement tool for use in enforcing past due child support and spousal support.
(2) The department shall:
(a) Establish and maintain a financial institution data match process with financial institutions in compliance with 42 U.S.C. section 666(a)(17);
(b) Define the type of information in the hands of financial institutions pursuant to the agreements with financial institutions which, if available to the department, would improve the effectiveness of child support collection;
(c) Limit authority to engage the matching process and access to all information received to specialized staff in the department and develop written protocol within the department for the foregoing;
(d) Limit data matching by the department to those obligors who are in arrears in an amount equal to or greater than the total support owing for at least ninety (90) days, or two thousand dollars ($2,000), whichever is less;
(e) Provide for statistical verification of the improvement to child support enforcement in this state which results from use of the data match process with the financial institutions;
(f) Design the data match process identified herein in such a manner that it will be the least intrusive, least expensive and most confidential process reasonably possible;
(g) Develop a satisfactory contract term to protect the contracting entities from legal liability for disclosure of information as authorized by statute and to protect the public’s right of action for wrongful disclosure;
(h) Enter into agreements with financial institutions, and pay reasonable compensation, not to exceed actual costs incurred by the financial institutions in developing the data match process and conducting the data match.
(3) Terms of an agreement between the department and a financial institution shall require the financial institution to provide to the department: the name and address of each obligor identified in the matching process, the account number(s) or other means of identifying the asset, the amount and type of asset, the state in which the asset is located, and other information necessary for compliance with federal requirements.
(4) Assets identified under this section may be withheld, attached or garnished as provided by this chapter and otherwise as allowed by law.
(5) The assets which are subject to this section, regardless of location in this or other states, are those on deposit with or held by a financial institution.
(6) Assets in accounts with the obligor as sole owner or with the obligor and spouse as the only co-owners, are subject to withholding up to the lesser of one hundred percent (100%) of the asset or the amount of arrears owed by the obligor, as set forth in the asset withholding order plus any fees pursuant to section 32-1608(2), Idaho Code. Assets in other multiple party accounts are subject to withholding up to the lesser of a proportionate amount of the asset based upon the number of co-owners or the amount of arrears owed by the obligor, as set forth in the asset withholding order, plus any fees pursuant to section 32-1608(2), Idaho Code.
[(32-1601) 56-203F, added 1997, ch. 315, sec. 1, p. 931; am. 1998, ch. 227, sec. 1, p. 776; am. and redesig. 2004, ch. 213, sec. 1, p. 640.]
As used in this chapter:
(1) "Arrears" means child or spousal support that is due, owing and unpaid pursuant to a support order.
(2) "Asset" means cash or cash value in or of a demand deposit account, checking or negotiable withdrawal order account, savings account, share account, share draft account, time deposit account or money market mutual fund account; and/or negotiable instruments including stocks and bonds, annuities, investment accounts or funds, and the cash value of insurance.
(3) "Asset withholding order" means an administrative order issued by the department of health and welfare to a financial institution requiring the freezing and surrender of an asset in which an obligor has an interest.
(4) "Child support" means the obligation, pursuant to a support order, to provide for the needs of a child, including food, clothing, shelter, education, day care and health care. "Child support" also includes reimbursement to any agency for medical assistance, assistance paid to families with children, and interest owed on such support.
(5) "Co-owner" means a person having withdrawal rights on a multiple party account.
(6) "Department" means the Idaho department of health and welfare.
(7) "Financial institution" means a bank, credit union or other depository institution, benefit association, insurance company, safe deposit company, money market mutual fund and other entities defined in 42 U.S.C. 669a(d)(1).
(8) "Obligor" means any person obligated by support order to pay child or spousal support.
(9) "Owner" means a person or entity who, by the terms of the account, has a present right, subject to a proper request in compliance with terms of the account, to payment from the account.
(10) "Spousal support" means the obligation, pursuant to a support order, to provide for a spouse or a former spouse.
(11) "Support order" means a judgment, decree, or administrative order from any state, directing one (1) or more individuals to pay child support or spousal support.
[32-1602, added 2004, ch. 213, sec. 2, p. 642.]
When the department receives information from a data matching process that an obligor is an owner or co-owner of an asset held by a financial institution, the department may issue an asset withholding order. Any asset which is subject to a previously perfected security interest or right of set-off from the financial institution is subject to withholding only as to the unencumbered portion of the asset.
[32-1603, added 2004, ch. 213, sec. 2, p. 643.]
An asset withholding order shall contain:
(1) The name of the obligor and any known co-owner or multiple party account holder;
(2) The address of the obligor as listed in the department’s records;
(3) The account number or other means of identifying the asset subject to the withholding order;
(4) The amount of arrears owed by the obligor;
(5) Other information as determined by the department.
[32-1604, added 2004, ch. 213, sec. 2, p. 643.]
(1) When an asset withholding order is received by a financial institution pursuant to this chapter, the financial institution shall immediately freeze the asset subject to the withholding order up to the maximum amount as set forth in section 32-1601(6), Idaho Code. Financial institutions shall accept the asset withholding order at any office of the financial institution located in this state, or at a particular office in this state or another state designated by the financial institution for the service of attachment, execution and garnishment papers pursuant to section 11-703(2), Idaho Code.
If the financial institution has designated a particular office for service of attachment, execution and garnishment papers pursuant to section 11-703(2), Idaho Code, and the asset withholding order is received by another office of the financial institution, it is within the discretion of the financial institution to accept the order and promptly forward the order to the designated office; not accept the order and promptly forward the order to the designated office; or promptly return it to the department. If a financial institution has chosen to accept the order at a nondesignated office, the financial institution’s duties pursuant to section 32-1608(1), Idaho Code, shall be effective upon acceptance at that office, and the time periods for the financial institution’s duties pursuant to subsections (2) and (3) of section 32-1608, Idaho Code, shall begin to run upon receipt of the order at the designated office.
(2) Unless otherwise notified by the department pursuant to this chapter, the financial institution shall release the asset to the obligor on the seventy-sixth day after the financial institution receives the asset withholding order.
(3) The department shall provide the financial institution with copies of the order and notice required by section 32-1607, Idaho Code, to forward to the obligor and any co-owner.
[32-1605, added 2004, ch. 213, sec. 2, p. 643; am. 2017, ch. 303, sec. 11, p. 815.]
(1) A financial institution shall accept an asset withholding order by any form of U.S. mail, commercial mail, delivery service, by facsimile or other electronic form of correspondence. If the asset withholding order is delivered electronically, the effective date shall be the date the electronic copy is received. An additional copy of the order shall also be sent to the financial institution by regular mail.
(2) If the financial institution elects to designate an out-of-state office to accept or process an asset withholding order, such election shall act as a waiver of any claim of defect in jurisdiction.
[32-1606, added 2004, ch. 213, sec. 2, p. 644.]
Upon the issuance of an asset withholding order to the financial institution, the department shall, within one (1) business day, send to the obligor by certified mail, at the last known address in the department’s records, a copy of the asset withholding order and a notice containing the following:
(1) The obligor’s and/or the co-owner’s right to a hearing;
(2) The request for a hearing must be in writing and received by the department within fourteen (14) days after the date of mailing the notice;
(3) That the asset subject to the withholding order will be applied to the arrears unless a timely request for hearing is made;
(4) That the asset will be released by the department if the obligor pays the arrears and the current support obligation in full; and
(5) The grounds to contest the asset withholding order:
(a) The amount of arrears;
(b) The validity of the order;
(c) The extent of the obligor’s interest in the asset; and
(d) The amount which qualifies as a homestead exemption pursuant to section 55-1008, Idaho Code.
[32-1607, added 2004, ch. 213, sec. 2, p. 644.]
(1) Upon receipt or acceptance of an asset withholding order issued by the department pursuant to this chapter, the financial institution shall immediately freeze the asset subject to the withholding order up to the maximum amount as set forth in section 32-1601(6), Idaho Code. The financial institution shall honor the terms of the account of the said asset, except when the terms conflict with compliance with this chapter. The financial institution shall freeze, release or surrender the asset as provided in this chapter.
(2) The financial institution shall be required to mail, within two (2) business days, copies of the asset withholding order and notice, provided by the department pursuant to section 32-1605(3), Idaho Code, to the obligor and to each co-owner, based on the records of the financial institution. A fee not to exceed five dollars ($5.00) per mailing may be assessed by the financial institution for sending the required copies of the documents. The fee can be withheld in addition to the amount ordered withheld. If funds are inadequate to cover the amount of the asset withholding order and the fees, the fees may be withheld from the asset before the remaining balance is applied to the withholding order.
(3) The financial institution shall complete and return to the department any asset verification form provided by the department within fourteen (14) days from the date of receipt of the asset verification form.
(4) Upon notification by the department that the obligor has not filed a request for hearing within the allowed time, the financial institution will release the asset promptly to the department by sending the funds to the department.
[32-1608, added 2004, ch. 213, sec. 2, p. 645.]
If the obligor or a co-owner has not filed a request for hearing within fourteen (14) days after the date the department mailed the notice to the obligor, the department shall notify the financial institution and the financial institution shall promptly surrender the amount of the asset that has been frozen to the department. The department shall apply this amount to the obligor’s arrears.
[32-1609, added 2004, ch. 213, sec. 2, p. 645.]
(1) Within five (5) business days of receiving a timely request for hearing, the department will schedule the administrative hearing date and notify the obligor and any co-owners by mail. Upon receiving the request for hearing, the department shall notify the financial institution that it must continue to hold the asset until an order is issued and the department provides instructions for the disposition of the asset pursuant to section 32-1612, Idaho Code.
(2) The department will hold an administrative hearing within thirty (30) days from the day the department receives the request for hearing.
[32-1610, added 2004, ch. 213, sec. 2, p. 645.]
The obligor who owes the support or any co-owner of the asset that is subject to the asset withholding order may contest the order to withhold. Contests are limited to the following issues:
(1) The amount of the arrears;
(2) The validity of the order;
(3) The extent of the obligor’s interest in the asset; or
(4) The amount which qualifies as a homestead exemption pursuant to section 55-1008, Idaho Code.
Issues that have been previously adjudicated may not be contested.
[32-1611, added 2004, ch. 213, sec. 2, p. 646.]
(1) The department shall issue an order based upon the hearing that rejects the contest or supports the contest in whole or part. The parties may file an appeal with the district court within twenty-eight (28) days, notwithstanding the provisions of section 67-5243, Idaho Code.
(2) The department shall notify the financial institution in writing, within two (2) business days after the receipt of the order, as to the outcome of the hearing, and provide instructions to the financial institution as to the disposition of the asset that has been frozen.
[32-1612, added 2004, ch. 213, sec. 2, p. 646.]
(1) The allegations of the asset withholding order shall be deemed admitted and the department shall issue an order upholding the asset withholding order if the obligor or co-owner fails to appear at the hearing without good cause. The default and issuance of any subsequent order shall be entered pursuant to the department’s rules governing contested case proceedings.
(2) The department shall notify the financial institution in writing, within two (2) business days after the receipt of the default order, and provide instructions to the financial institution as to the disposition of the asset that has been frozen.
[32-1613, added 2004, ch. 213, sec. 2, p. 646.]
Notwithstanding any other provisions of federal or state law, any financial institution, or officer, agent or employee of the financial institution, acting in good faith, shall be immune from all civil and criminal liability for withholding funds, freezing assets, turning over assets or otherwise complying or attempting to comply with the provisions of this chapter or for disclosing any information to a state child support enforcement agency pursuant to this chapter. A financial institution shall not be required to give notice to any owner or co-owner of the financial institution concerning whom the financial institution has provided information pursuant to the data match process. The state child support enforcement agency which obtains information from any financial institution may disclose such information only for the purpose of, and to the extent necessary to establish, modify or enforce a support obligation of an obligor.
[32-1614, added 2004, ch. 213, sec. 2, p. 646.]
This chapter may be known and cited as the "De Facto Custodian Act."
[32-1701, added 2010, ch. 236, sec. 1, p. 609.]
The purpose of this act is to:
(1) Give constitutionally required deference to the decisions of fit parents in custody actions brought by third parties;
(2) Subject to such constitutionally required deference, meet the needs of children for caring and stable homes by providing a flexible method by which a third party who has cared for and supported a child may obtain legal and physical custody of the child where such custody is in the child’s best interests.
[32-1702, added 2010, ch. 236, sec. 1, p. 609.]
(1) "De facto custodian" means an individual who:
(a) Is related to a child within the third degree of consanguinity; and
(b) Either individually or together with a copetitioner has been the primary caretaker and primary financial supporter of such child has resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of:
(i) Six (6) months or more if the child is under three (3) years of age; or
(ii) One (1) year or more if the child is three (3) years of age or older.
(c) For purposes of the definition in this section, "lack of demonstrated consistent participation" by a parent means refusal or failure to comply with the duties imposed upon the parent by the parent-child relationship. When determining a "lack of demonstrated consistent participation," the court may consider parent involvement in providing the child necessary food, clothing, shelter, health care and education and in creating a nurturing and consistent relationship for the child’s physical, mental or emotional health and development.
(2) In determining if a petitioner or intervenor is a de facto custodian for the child, the court shall also take into consideration whether the child is currently residing with the petitioner or intervenor and, if not, the length of time since the child resided with the petitioner or intervenor.
(3) Any period of time after the filing of a petition pursuant to this chapter shall not be included in determining whether the child has resided with the individual for the time period as provided in subsection (1) of this section.
(4) An individual shall not be deemed a de facto custodian if a child has resided with the individual because:
(a) The child was placed in the individual’s care through a court order or voluntary placement agreement under title 16, Idaho Code; or
(b) The individual is or was cohabiting with, or is or was married to, a parent of the child.
[32-1703, added 2010, ch. 236, sec. 1, p. 609.]
(1) A child custody proceeding may be initiated in any court of this state with jurisdiction to determine child custody matters, by an individual:
(a) Filing a petition seeking a determination that he or she is a de facto custodian pursuant to section 32-1703, Idaho Code, and seeking custody of a child; or
(b) Filing a motion seeking permissive intervention pursuant to rule 24 of the Idaho rules of civil procedure, in a pending custody proceeding seeking a determination that he or she is a de facto custodian pursuant to section 32-1703, Idaho Code, and seeking custody of a child.
(2) A petition for custody or a motion to intervene based on the petitioners or intervenors alleged status as a de facto custodian, filed under this section, must state and allege:
(a) The name and address of the petitioner or intervenor and any prior or other name used by the petitioner or intervenor;
(b) The name of the respondent mother and father or guardian(s) and any prior or other name used by the respondent(s) and known to the petitioner or intervenor;
(c) The name and date of birth of each child for whom custody is sought;
(d) The relationship of the petitioner or intervenor to each child for whom custody is sought;
(e) The basis for jurisdiction asserted by the petitioner or intervenor;
(f) The current legal and physical custodial status of each child for whom custody is sought, whether a proceeding involving custody of the child, including a proceeding for an order or protection pursuant to section 39-6304, Idaho Code, is pending in a court in this state or elsewhere, and a list of all prior orders of custody, including temporary orders, if known to the petitioner or intervenor;
(g) Whether either parent is a member of the armed services, if known to the petitioner or intervenor;
(h) The length of time each child has resided with the petitioner or intervenor and the nature of the petitioners or intervenors role in caring for each child for whom custody is sought;
(i) The financial support provided by the petitioner or intervenor for each child for whom custody is sought;
(j) Whether physical and/or legal custody should be granted to and/or shared with the respondent(s); and
(k) The basis upon which the petitioner or intervenor is claiming that it is in the best interests of the child that the petitioner or intervenor have custody of the child.
(3) The petition or motion must be verified by the petitioner or intervenor.
(4) Written notice of a hearing on a petition or motion to intervene for custody of a child by a de facto custodian must be given to:
(a) The parent(s) of the child as defined in section 16-2002(11) and (12), Idaho Code; and
(b) The guardian or legal custodian, if any, of the child; and
(c) The child’s tribe pursuant to federal law, if the child is an Indian child as defined in the Indian child welfare act, 25 U.S.C. 1901, et seq.
(5) Written notice of a hearing on a petition for custody of a child by a de facto custodian must be given to the Idaho department of health and welfare if the petitioner has reason to believe that either parent receives public assistance, the petitioner receives public assistance on behalf of the child or either parent receives child support enforcement services from the Idaho department of health and welfare or applies for such public assistance or child support enforcement services after a petition under this section is filed. Notice to the Idaho department of health and welfare must include a copy of the petition.
(6) In an action for custody of a child by a de facto custodian, the parties must stipulate to, or the court must find, facts establishing by clear and convincing evidence that the petitioner or intervenor is a de facto custodian pursuant to the requirements of section 32-1703, Idaho Code, before the court considers whether custody with the de facto custodian is in the best interests of the child.
(7) Once a court has found facts supporting the qualification of the petitioner or intervenor as the de facto custodian of a child, the petitioner or intervenor must prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the de facto custodian. In determining the best interests of the child, the court shall apply the standards as provided in section 32-717(1), Idaho Code.
(8) In determining whether the petitioner or intervenor has established that it is in the best interests of the child to be in the custody of the de facto custodian, the court may also consider:
(a) The circumstances under which the child was allowed to remain in the care of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent to seek work or to attend school;
(b) Whether the child is currently residing with the de facto custodian and, if not, the length of time since the petitioner or intervenor last functioned as the child’s de facto custodian.
[32-1704, added 2010, ch. 236, sec. 1, p. 609.]
(1) A court may enter an order granting a de facto custodian sole or joint legal and/or physical custody as defined in section 32-717B(1), (2) and (3), Idaho Code, in the same manner as it would grant such custody to a parent.
(2) An order granting custody to a de facto custodian is subject to the continuing jurisdiction of the court and is modifiable in the same manner as an order establishing parental custody pursuant to section 32-717, Idaho Code, or a similar provision.
(3) A de facto custodian who has been granted sole or joint legal custody of a child shall have access to records pertaining to the child who is the subject of the de facto custodianship to the same extent as a parent would have such access pursuant to an order of legal custody.
(4) Any party to the proceeding granting custody to a de facto custodian may move for the termination of the custody order. A de facto custodian may move for permission to resign as de facto custodian.
(a) A party moving for termination of the de facto custodian-child relationship must show by a preponderance of the evidence that termination of the relationship would be in the best interests of the child.
(b) A motion for termination or for resignation may, but need not, include a proposal for the continuing custody of the child.
(c) After notice and hearing on a motion for termination or resignation, the court may terminate the custody of the de facto custodian and may make any further orders that may be appropriate in the best interests of the child.
[32-1705, added 2010, ch. 236, sec. 1, p. 611.]
(1) A parent or legal guardian of a child, by a properly executed power of attorney, may temporarily delegate to another person, named in the instrument as the temporary caregiver, any of the traditional parental rights and responsibilities regarding care and custody of the child except for:
(a) Consent for the child to marry;
(b) Consent for an abortion or inducement of an abortion to be performed on or for the child; or
(c) The termination of parental rights to the child.
(2) A temporary caregiver properly appointed pursuant to this chapter and in compliance with this chapter is not subject to any statutes regarding the licensing or regulation of foster care homes or other child care facility licensing statutes, and the appointment of a temporary caregiver pursuant to this chapter does not constitute an out-of-home child placement.
(3) The child or children subject to the power of attorney established pursuant to this section will not be considered placed in foster care, and the parties involved in the power of attorney established pursuant to this section are not subject to any requirements, monitoring, or other regulation for foster care or community care solely because of the execution of an instrument authorized pursuant to this section.
(4) A delegation of parental rights and responsibilities made pursuant to this section may last for up to six (6) months.
[32-1801, added 2021, ch. 269, sec. 1, p. 818.]
(1) A temporary delegation of rights and responsibilities under this chapter does not:
(a) Operate to change or modify any parental or legal rights, obligations, or authority established by an existing court order;
(b) Deprive the parent or legal custodian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of the child; or
(c) Constitute child abuse, neglect, or placement in foster care.
(2) The parent or legal custodian of the child has the authority to revoke or withdraw the power of attorney authorized by section 32-1801, Idaho Code, at any time.
(3) Upon the termination, withdrawal, or revocation of the power of attorney established by section 32-1801, Idaho Code, the child will be returned to the custody of the parent or legal guardian no later than forty-eight (48) hours after such termination, withdrawal, or revocation.
[32-1802, added 2021, ch. 269, sec. 1, p. 818.]
A temporary caregiver appointed pursuant to section 32-1801, Idaho Code, shall not receive financial payment other than reimbursement for actual expenses arising from the care of the child.
[32-1803, added 2021, ch. 269, sec. 1, p. 819.]
(1) For purposes of this section and section 32-1805, Idaho Code, "temporary care assistance program" means a program operated by an organization that assists a parent or guardian with recruiting or identifying an appropriate and safe temporary caregiver to whom the parent or guardian can choose to delegate temporary care responsibility of a minor through a power of attorney. A temporary care assistance program shall comply with nationally recognized standards, such as those found in the title IV-E prevention services clearinghouse.
(2) During a child protection investigation that does not result in an out-of-home placement due to abuse of a child, the child protective investigator is authorized and encouraged to provide information to the parent or legal guardian about temporary care assistance programs. The child protective investigator is authorized to exercise discretion in recommending programs, organizations, and resources to the parent or legal guardian.
[32-1804, added 2021, ch. 269, sec. 1, p. 819.]
(1) For a temporary care assistance program, the department of health and welfare shall check against the state’s sex offender registry operated by the Idaho state police and against the national sex offender public website operated by the United States department of justice that checks names and addresses in the registries before allowing someone to become a temporary caregiver within the program’s service. The process must include a criminal history and background check conducted by the department of health and welfare, pursuant to chapter 25[27], title 56, Idaho Code, which shall be conducted in the same manner as background checks for foster parents. The background check shall be fingerprint-based and shall require that the fingerprints of temporary caregivers be submitted to the Idaho state police to process the background check through the state criminal history repository and the federal bureau of investigation for a national criminal history search. The department of health and welfare shall not charge a fee for background checks required by this section.
(2) The temporary caregiver’s residence must be inspected annually by the affiliated temporary care assistance program.
(3) The temporary care assistance program must disclose to any parent or guardian using its services that any delegation of parental rights and responsibilities shall be made to a temporary caregiver, not to the temporary care assistance program itself.
[32-1805, added 2021, ch. 269, sec. 1, p. 819; am. 2024, ch. 104, sec. 1, p. 471; am. 2026, ch. 220, sec. 3, p. 920.]
(1) Nothing in this chapter shall be construed to affect any delegation of powers made pursuant to section 15-5-104, Idaho Code.
(2) Nothing in this chapter shall be construed as invalidating the provisions of the child protective act in chapter 16, title 16, Idaho Code, or shall modify the burden of proof at any stage of proceedings under the child protective act. Nothing in this chapter shall be construed to modify any existing, compelling governmental interest.
STATUTORY CONSTRUCTION. [effective January 1, 2027]
(1) Nothing in this chapter shall be construed to affect any delegation of powers made pursuant to section 15-5-124, Idaho Code.
(2) Nothing in this chapter shall be construed as invalidating the provisions of the child protective act in chapter 16, title 16, Idaho Code, or shall modify the burden of proof at any stage of proceedings under the child protective act. Nothing in this chapter shall be construed to modify any existing, compelling governmental interest.
[32-1806, added 2021, ch. 269, sec. 1, p. 819; am. 2026, ch. 79, sec. 25, p. 416.]
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