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Custody and the Best Interest of the Child Standard

by | Jun 27, 2022 | Child Custody

In Idaho, courts award custody of children based on the Best Interest of the Child Standard.  What does this mean?

Before discussing that, Idaho law presumes that both parents should have substantial time with the children. “Presumes” is a huge word in the law. Think of a presumption like a default. You can overcome the presumption and get a ruling the other way, but the burden of proof – and often a substantial one – is on the person trying to overcome the presumption.

Now then. What do we mean by “Best Interest of the Child”?  Idaho Code Section 32-717 address this. When asked to rule on custody, the Judge will generally go down the list of factors, discuss which one, and decide which parent, if either, that factor favors.

The listed factors are:

(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.

But the statute says the court is to consider all relevant factors, including those listed. This is where case law comes in. By “case law,” we mean Idaho Appellate and Supreme Court decisions on point. Such decisions guide judges (and everyone else) as far as how the law applies to similar fact patterns.

Examples of other “relevant factors” include:

  • Interfering with the other parent’s relationship with the child is a negative. Moving out of state with the child is one variant of interfering.
  • Not taking the custody time a parent is entitled to is a negative.
  • Criminal activity or failing to follow court orders are negatives (but perhaps these are variants of “character” in factor (e).
  • Exposing the child to negative influences, such as marijuana (illegal in Idaho).
  • Exposing the child to needless risk is a serious negative. Examples include drinking and driving; failing to use a proper car seat; leaving a small child alone, even if very briefly.
  • Failure to use a proper car seat.
  • Willingness and ability to co-parent is a positive.
  • Getting the child involved in parental disputes is very negative.

The court (and a good attorney) will also look at what is not a valid best interest argument. A parent’s spite for the other, very common in ugly breakups, needs to be set aside for the good of the child. A parent’s disapproval of the other’s parenting style needs to have solid proof.

Lastly, once a custody determination is made, co-parenting is essential for the well-being of the child. If parents can’t put aside their differences, there are tools to help them. For example, a Parenting Coordinator is someone appointed by the court to help parents comply with a custody order, resolve day-to-day issues between the parents, learn healthy and effective communication skills, and ultimately, reduce the risk (with its expense) of going back to court. Another tool is to agree in advance that mediation will be used to help resolve parenting disputes. Re-litigating might be an option, but likely the most expensive and ugliest one.

Bottom line: I believe that if a child’s parents do not live together, there needs to be a court order for custody in place.  It is best if the parents can agree on custody. But if they can’t the court will step in.  What we have discussed is how the court will go about making its determination.