Child custody determinations arise in the context of a divorce with minor children and/or in a petition to establish child custody when the biological parents were never married.  Often times, the parents can work together to create a child custody schedule and terms that they both will agree to put in place.  However, if you and your spouse/co-parent cannot agree on a child custody schedule, you will have to present evidence to the Court supporting your contention that it is in your child/children's "best interests" that you have primary custody instead of the other parent. 

 

The "best interests of the child" standard is mandated by Idaho Code § 32-717.  While the "best interests" standard is very broad, Idaho law sets forth certain factors that the Court must take into account in determining child custody.  Idaho Code § 32-717 provides the Court "shall consider" the following factors in deciding what custody schedule is in the child/children's best interest, but these factors are non-exhaustive and the Court may consider other evidence/factors:

 

 

This article will not attempt to dissect each factors, but suffice to say the Court has discretion to determine how much emphasis and importance to place upon each factor.  For example, under factor (b), the Court may give more weight and deference to the wishes of a 17 year-old child vs. a 10 year-old.  If a child is too young or immature, his/her wishes (to the extent they can be ascertained) may not be given hardly any weight.  Typically, the Court will take into account the wishes of the child when the child can be shown to be mature enough to provide such input and the Court can determine that no undue influence is being exerted upon the child by either parent.  Depending on the maturity level of the child involved, the child could be interviewed by the Court at ages as young as 10 years old, or even younger in some cases.  

 

Under factor (c), each parent's role in the early life of the child will often carry a lot of weight.   If one parent stayed home with the child after birth, during the child's early formative years, while the other parent worked outside the home, the stay-at-home parent will often have a big advantage in claiming it is in the child's best interest that he/she have primary custody.  However, the older the child is, this factor may be assigned lesser weight in the Court's determination.  Commonly, the evidence will show that one child has a stronger, more-connected relationship with one parent, while the child's sibling has a stronger relationship with the other parent, i.e., the best interest of each child will be determined separately and they may not follow the same custody schedule.   This is more common in older children because younger children often benefit from being with one another and following the same schedule.

 

Under factor (e), the "character and circumstances of all individuals involved" can cast a very wide net.   While this may encompass the actions/behaviors of the parents themselves, it may also include the actions/behaviors of any other person that may have contact with the child. For example, if your brother is living with you because he just got released from incarceration for a violent crime, that factor can/will/should be considered by the Court in determining what custody arrangement is in the best interests of the child. 

 

Lastly, under factor (f), promoting "continuity and stability" in the child's life can involve several subfactors. If for example, one parent wishes to move away from where the child has lived the last several years, this would be a huge change to the continuity and stability of the child's life.  Sometimes before coming to Court, unmarried parents will have worked out their own custody schedule and have followed it for a year.   In those circumstances, whatever schedule the parties had ben following will be given some amount of deference because keeping the child on that schedule will promote continuity and stability in the child's life.  Courts typically are resistant to ordering big alterations to the child normal schedule, unless there are very good reasons to do so.       

 

If you believe you will be in a child custody battle in Court, remember that the Court is only concerned about the "best interests of the child" and will make a determination based on the factors discussed herein.  Be prepared to address each of these factors with your Judge and provide evidence/testimony in support of your belief about what is in your child's best interests.

 

If you have questions about an upcoming or potential child custody matter, please contact Bradley Sneed with Sneed Law, PLLC at (208) 288-1888 or [email protected].