Custody

Joint custody is when custody is given to both parents. The child has frequent and continuing contact with each parent. The judge can award joint physical custody, joint legal custody, or both. The judge will usually assume that joint custody is best for the child unless there is enough proof (a “preponderance of the evidence”) that it’s not. If the judge denies joint custody, the judge must explain why.¹ To learn more about when the judge will not order joint custody, go to Can a parent who committed domestic violence get joint custody?

There are two parts of joint custody.

• Joint physical custody is when both parents care for and supervise the child. The child lives with each of them for significant time periods. The child is supposed to have frequent and continuing contact with both parents. However, this does not mean the child must spend equal time with each parent.
• Joint legal custody means that the parents share the legal rights, responsibilities, and power to make important decisions about the child’s health, education, and general welfare.²

Sole physical custody is when the child mostly lives with one parent. The other parent can still have the right to visit with the child.

Sole legal custody is when only one parent has the legal right to make important decisions about the child’s health, education, and welfare. 

¹ I.C. § 32-717B(1), (4), (5)
² I.C. § 32-717B(2), (3)

You can file for custody if you are the child’s parent, a grandparent with whom the child lives in a stable relationship, or a “de facto custodian.”¹ 

A de facto custodian is someone who:

1. is the child’s relative within three degrees of relation (consanguinity), such as an uncle or great-grandparent; and
2. was the child’s primary caregiver, financially supported the child, and lived with the child while the child’s parent was absent and inconsistently involved in the child’s life for a specific period of time, as follows:
   
   • If the child is under three years old, the time period is six months or longer.
   • If the child is three years old or older, the time period is one year or longer.²

Note: The child’s step-parent or the parent’s live-in partner cannot be considered a de facto custodian.³

If you believe you qualify as a de facto custodian, see How will the judge decide if a de facto custodian should have custody?

¹ I.C. ^​§§ 32-717(3); 32-1704(1)
² I.C. ^​§ 32-1703(1)(a), (1)(b)
³ I.C. ^​§ 32-1703(4)(b)

A parenting plan is a written document that describes in detail what the custody and visitation arrangements are. It sets out when each parent will have time with the child. It also explains the parents’ responsibilities and how they will make important decisions.

In Idaho, parents must fill out a parenting plan form when they file for custody.¹ The Bannock County Court Assistance Office has a YouTube video that explains how to complete the form.

If you are a victim or survivor of domestic violence, your parenting plan needs to be safe for you and your child. The best way to get help making a safe plan is to get advice from a lawyer who knows about custody and domestic violence. Go to our Idaho Finding a Lawyer page for legal referrals. If you have to be in court on your own without a lawyer, you may find it helpful to read this guide published by the National Council of Juvenile and Family Court Judges called 10 Things to Know About Parenting Plans in Cases Involving Domestic Violence.

¹ See the Idaho Court Assistance Office (CAO) Family Law form called “CAO FL-3 Parenting Plan,” available at https://courtselfhelp.idaho.gov/Forms

If you’re worried about leaving your child alone with the abuser, you might think about asking a judge to order supervised visits. Supervised visits could be as lenient as having someone else there during the visits to “keep an eye” on things, or it could be as strict as having a professional appointed to observe and report back on the interaction between your child and the other parent. If you are already in court because the abuser filed for visitation or custody, it might be worth asking for supervised visits if you have a good reason. It depends on your situation.

However, if there is no court case going on now, it’s a good idea to talk to a lawyer before you start a case to ask for supervised visits. A custody lawyer in your area can explain what you need to prove to get supervised visits and how long they might last based on what is happening in your case.

Usually, supervised visits are only ordered for a short time but this may be different depending on where you live and who your judge is. The judge might order a professional to watch the visits, or a relative or other person known to either parent might volunteer to be the supervisor. If the supervisor doesn’t report any big problems back to the judge, the visits might become unsupervised. At the end of a case, the other parent might get more frequent and longer visits than s/he had before you went into court or even some form of custody.

If your child is in immediate danger from the abuser, you may need to start a case to ask for custody and supervised visits to protect your child. To find out what is best for your situation, you can look for legal advice using our Idaho Finding a Lawyer page.