Many divorcing parents can reach their own agreements about custody and visitation arrangements that work best for their families. But when parents can't agree, they will end up in court, where a judge will make these decisions.
What's the Difference Between Legal and Physical Custody?
Legal custody refers to a parent’s right to make decisions relating to the child’s health, education, and general welfare. Common issues that arise with legal custody involve the child’s education, major medical procedures, and/or religious upbringing. In Idaho, the court may order sole or joint legal custody. If the court awards sole legal custody, the parent will have a right to make these choices on their own. If the court awards joint legal custody, both parents share decision-making authority. If parents can’t agree, the court will decide.
Physical custody generally refers to the parent’s time with the child, and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, a court can award sole or joint physical custody. Courts often award joint physical custody to assure the child will have frequent and continuing contact with both parents, but it is important to understand that this doesn’t necessarily mean that the child will spend the same time with each parent. Parents who are awarded sole physical custody have substantially more time with the child, and courts often refer to them as the “custodial parents.”
In Idaho, the court presumes that it is in the child’s best interest to award joint physical and legal custody unless there is evidence that proves it is harmful to the child, or if the court finds that one of the parents is guilty of domestic abuse.
What is Visitation?
If the court awards sole physical custody, the next step is to determine a parenting time (visitation) schedule for the non-custodial parent and the child. The court will often encourage the parents to work together to draft a schedule that works best for everyone, especially the children. A successful calendar will include a specific schedule for visitation—including holidays, school vacations, and birthdays. It should also contain information on pick-up and drop-off locations, who will be responsible for transporting the children during visitation and who will pay for transportation costs. Parenting plans should also have a provision that allows each parent to have access to a child’s official records, including medical and educational information.
In some cases, overnight or unsupervised time with a parent may not in the child’s best interest. If a parent has a history of being absent, neglectful, or abusive, the court may require that parent to spend time with the child at a county or state facility with a professional supervisor in attendance. Visitation facilities may not be free so the non-custodial parent will be responsible for any required payment.
How Do Courts in Idaho Determine Custody?
First, courts prefer and encourage parents to work together to determine their ideal custody arrangements. When parents get stuck working out the details or coming to an agreement, they may consider child custody mediation, where a neutral third-party—called a mediator—helps them reach an agreement on the best custody and visitation arrangement for their family.
If parents still can’t resolve their custody issues, a judge will have to decide based on the best interests of the child. During a child custody hearing, each parent will have an opportunity to show or tell the court why they believe they should be granted custody. Judges will consider the following factors when issuing custody orders:
- what each parent wants for the custody arrangement
- the child’s preference
- the relationship between the child and their parents (and siblings, if any)
- the child’s adjustment to their home, school, and community
- the parents' character
- the need to promote stability in the child’s life, and
- any history of domestic violence.
Modifying Custody and Visitation
Stability is essential for children, but custody and visitation orders are not permanent. Life changes often and an agreement created when the child was a baby may not be appropriate when the child is a teenager. Parents can agree to a new custody and visitation order, or if they can’t agree, they can ask the court to modify the arrangement.
When parents want to change an existing custody order in Idaho, they must petition the court through a motion (a request asking the court for a hearing) and prove that there's been a significant or material change of circumstances in the parents’ or child’s life since the court entered the last order. Some examples of significant or material changes may include a relocation by either parent, drug or alcohol abuse by a parent, child abuse, new employment schedules, or unexpected medical or educational needs of the child.
If the parent proves there is a change in circumstances, a judge will evaluate the best interest factors listed above to establish a new custody and visitation order. Like an initial custody determination, the court will hear testimony and examine the evidence. Once the court concludes the hearing and makes its decision, the judge will issue a new custody order.
Custody and visitation battles are emotionally draining and complicated, so if you want to establish or modify custody, you should speak to an experienced family law attorney.