Idaho child custody attorneys provide answers to frequently asked questions with regards to Idaho child custody and Idaho custody laws.
Who will get custody of our child(ren)?
Idaho custody laws state the court is required to determine what is in the best interests of the children.
There are two components to the custody of a child that the court must determine. The court must decide which parent will have, or how both parents will share, the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child. This is referred to as legal custody.
The court must also decide where the child will have and how the parents will share the physical time with the child. This component is referred to as physical custody.
Idaho custody laws provide that the court is required to consider all relevant factors including:
- The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
- The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
- The need to promote continuity and stability in the life of the child;
- The child’s adjustment to the child’s home, school, and community;
- The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
- The intention of either parent to relocate the principal residence of the child; and
- The wishes of a child as to the child’s custodian.
What is joint custody? What is sole custody?
As discussed previously, custody has two components – legal custody and physical custody.
Joint legal custody means that the parents share the decision-making rights, responsibilities, and authority relating to issues concerning the health, education, and welfare of the child.
This means that unless the court orders one parent to have specific decision-making rights over a particular issue, the parents must confer with one another in making decisions on that issue.
Joint physical custody means that each parent has significant (but not necessarily equal) periods of time during which the child resides with him/her.
Sole legal custody refers to a custody arrangement where only one of the parents has the decision-making rights, responsibilities, and authority relating to issues concerning the health, education and welfare of the child.
Sole physical custody means that the child would reside with one parent. In sole physical custody situations, the non-custodial parent may have specific visitation rights which would be set out in the court’s order.
If both parents share custody does anyone pay child support?
Child support is determined based on gross monthly income and other expenses. Who has the majority of time with the child, while a factor, is not determinative of the support obligation
Can a parent refuse to allow visitation if child support is not paid?
No. A parent may not refuse to allow or cut back the other parent’s visitation with the children simply because the other parent has not paid his/her child support.
Payment of child support and visitation are legally independent matters. Both parents have the right to have a meaningful relationship with their children.
It should also be pointed out that if one parent refuses to allow the other parent visitation, that parent may not use that as a reason to withhold or stop paying child support.
When can my child decide which parent to live with?
In Idaho, there is not a set age limit on when a child can decide which parent to live with.
The court will consider the child’s wishes to the extent that the child is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.
Often times, the court will interview the child out of the presence of the parties. The question of whether your child should speak with the judge should be discussed with your attorney.
Do grandparents have custody and visitation rights?
In Idaho, the 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.
What is a parenting plan, and do I need one?
A parenting plan is a document that is intended to assist parents who are not living together in specifying the custody and visitation schedule, the decision-making rights and responsibilities of each parent, how disputes will be resolved, and how the expenses of the child will be paid.
In Idaho, the parties are required to submit a proposed parenting plan, either individually or together.
If my separation agreement includes custody/support can it be included in the divorce decree?
The parties may enter into a written separation agreement that addresses maintenance, the disposition of their property, and the custody, support, and visitation of the children.
Unless the court determines that the agreement is unconscionable, the court will approve and incorporate the terms of the separation agreement in the court’s divorce decree.
What can I expect from temporary orders?
A divorce, like any other lawsuit, can take some time to get through the court system and fully and completely resolve all issues between the parties. While the case is pending, the court can make temporary determinations that are effective until further order of the court.
The court can enter temporary orders that address custody and visitation arrangements concerning the parties’ children, child support, maintenance, payment of debts, costs, and possibly attorneys’ fees.
When will child custody be decided?
Custody of the parties’ children will be decided by the court. The court’s custody decision will be made on what the court determines is in the best interests of the children.
If the parties agree to a custody arrangement, the court must still make its own determination whether the arrangement is appropriate and decide whether to approve the agreement of the parties.
However, if the parties are not able to agree on custody, the court will make a determination after a formal court hearing in which both sides will be allowed to present testimony and evidence.
When can I modify custody?
In order for the court to modify the terms of a custody order, there must be substantial and materials changes in the circumstances of the child or the child’s custodian and the modification is necessary to serve the best interests of the child.
It is important to understand that there must be new facts that have come up since the prior order, or there must be facts that were not known by the court at the time of the prior order.
What if we cannot agree on a custody arrangement?
If the parties cannot agree on a custody arrangement for their children, the parties maybe ordered to go through mediation.
Ultimately, if the parties cannot agree, the court will make a custody order after a formal court hearing in which both sides will be allowed to present testimony and evidence.
What is an ex parte order?
An ex parte order refers to a court order that is entered at the request of one of the parties without hearing from the other party.
Generally, ex parte orders are issued in extreme situations and are temporary until the court can hold a hearing to give both sides the opportunity to address the court.
How can I increase my chances at getting a larger custody agreement?
There are certainly things you can do to improve your chances of convincing the court to give you more time with your children. Conversely, there are certainly things you can do that will hurt your custody battle.
You should consult with an attorney concerning the specifics of your situation. You should be aware that everything that you say and do in front of the children or the other parent could make its way back to the judge.
What is visitation?
Visitation refers to the time that the non-custodial parent will have with the children. A visitation plan will set forth the routine visitation, holidays, and summers.
The clearer and more specific the plan is, the less chance there is for miscommunication and confusion.
Can a judge order supervised visitation or no visitation?
Yes, if the court finds that supervised or no visitation is necessary because a party is a danger either physically or emotionally to the minor child, it can be ordered.
Do Courts favor the mother over the father?
Typically, a parent’s sex is not a determining factor in custody.
What should I know before a custody trial?
You should consult with an attorney concerning the specifics of your case.
Can I collect my own evidence to use if my custody case goes to court?
You should consult with an attorney concerning obtaining evidence in your case.
Do I need to use a Guardian ad Litem/Custody Evaluator?
No, but in some cases their services are highly helpful.
Will my child need to appear in court?
Usually, no. However, if the child is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule either party may ask the judge to privately speak with the child or children.
What is the Parental Kidnapping Prevention Act?
The Parental Kidnapping Prevention Act (PKPA) is federal law the individual states utilize to determine which state can assert jurisdiction in child custody matters. The PKPA’s purpose is to ensure that custody determinations are made in the appropriate state.
What if my wife tries to move the kids out state?
If your divorce has not been filed and your wife tries to move the children to another state, you should consult with an attorney about filing for divorce immediately to make sure that the court in Idaho will have jurisdiction over the children.
Most states have a residency requirement before a parent can file for divorce. The party must be a resident of the state for a specified period of time, before they can file for divorce.
If I have custody, will I receive Child Support?
Child support is determined based on gross monthly income and other expenses. Who has the majority of time with the child, while a factor, is not determinative of the support obligation.