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LEGISLATURE
OF
THE
STATE
OF
IDAHO
Sixty-eighth
Legislature
Second
Regular
Session
-
2026
IN
THE
SENATE
SENATE
BILL
NO.
1395
BY
JUDICIARY
AND
RULES
COMMITTEE
AN
ACT
1
RELATING
TO
CHILD
CUSTODY;
PROVIDING
LEGISLATIVE
FINDINGS
AND
INTENT;
2
AMENDING
SECTION
32
-
717,
IDAHO
CODE,
TO
REVISE
PROVISIONS
REGARDING
3
CHILD
CUSTODY;
AMENDING
SECTION
32
-
717B,
IDAHO
CODE,
TO
PROVIDE
FOR
A
4
PRESUMPTION
OF
EQUAL
CUSTODY
ALLOCATION;
AMENDING
CHAPTER
7,
TITLE
32,
5
IDAHO
CODE,
BY
THE
ADDITION
OF
A
NEW
SECTION
32
-
721,
IDAHO
CODE,
TO
DE
-
6
FINE
TERMS;
AMENDING
SECTION
32
-
1705,
IDAHO
CODE,
TO
PROVIDE
A
CORRECT
7
CODE
REFERENCE;
AND
PROVIDING
AN
EFFECTIVE
DATE.
8
Be
It
Enacted
by
the
Legislature
of
the
State
of
Idaho:
9
SECTION
1.
LEGISLATIVE
FINDINGS
AND
INTENT.
(1)
The
Legislature
finds
10
that:
1
1
(a)
Parenthood
is
a
natural
and
fundamental
relationship
from
which
12
inherent
parental
rights
and
responsibilities
arise,
protected
by
the
13
United
States
Constitution
and
the
Constitution
of
the
State
of
Idaho;
14
(b)
A
parent
has
the
right,
obligation,
responsibility,
and
authority
15
to
raise,
manage,
train,
educate,
provide
for,
and
reasonably
disci
-
16
pline
the
parent's
child;
17
(c)
The
role
of
the
state
is
secondary
and
supportive
to
the
primary
18
role
of
a
parent;
19
(d)
A
parent's
fundamental
rights
may
be
restricted
only
upon
a
judi
-
20
cial
finding
of
unfitness
or
necessity,
supported
by
clear
and
convinc
-
21
ing
evidence;
and
22
(e)
The
interests
of
the
state
favor
preservation
and
not
severance
of
23
natural
familial
bonds
in
circumstances
where
a
positive,
nurturing
24
parent
-
child
relationship
can
exist,
including
extended
family
associ
-
25
ation
and
support.
The
procedural
safeguards
contained
in
this
act
are
26
essential
to
the
best
interests
of
the
child.
27
(2)
The
Legislature
declares
that
family
court
proceedings
affecting
28
the
custody,
care,
or
visitation
of
a
child
implicate
fundamental
liberty
29
interests.
30
(3)
It
is
the
intent
of
the
Legislature
to:
31
(a)
Protect
children
by
preserving
stable
relationships
with
fit
par
-
32
ents;
33
(b)
Ensure
that
restrictions
on
parental
rights
are
narrowly
tailored,
34
based
on
clear
and
convincing
evidence,
and
are
the
least
restrictive
35
means
available;
36
(c)
Promote
transparency,
accountability,
and
timely
judicial
action
37
in
all
custody
matters;
and
38
(d)
Promote
stability,
reduce
unnecessary
litigation,
and
support
39
the
child's
meaningful
relationship
with
fit
parents
by
establishing
40
clear,
uniform
standards
for
custody
determinations.
41
2
SECTION
2.
That
Section
32
-
717,
Idaho
Code,
be,
and
the
same
is
hereby
1
amended
to
read
as
follows:
2
32
-
717.
CUSTODY
OF
CHILDREN
-
-
BEST
INTEREST.
(1)
In
an
action
for
di
-
3
vorce
When
parents
cannot
reach
an
agreement
regarding
custody
or
parenting
4
time
of
a
minor
child,
the
court
may,
before
and
after
judgment,
give
such
di
-
5
rection
for
the
custody,
care
and
education
of
the
children
of
the
marriage
6
as
may
seem
necessary
or
proper
in
the
best
interests
of
the
children.
The
7
court
shall
consider
all
relevant
factors
which
may
include:
8
(a)
The
wishes
of
the
child's
parent
or
parents
as
to
his
or
her
custody;
9
(b)
The
wishes
of
the
child
as
to
his
or
her
custodian;
10
(c)
The
interaction
and
interrelationship
of
the
child
with
his
or
her
1
1
parent
or
parents,
and
his
or
her
siblings;
12
(d)
The
child's
adjustment
to
his
or
her
home,
school,
and
community;
13
(e)
The
character
and
circumstances
of
all
individuals
involved;
14
(f)
The
need
to
promote
continuity
and
stability
in
the
life
of
the
15
child;
and
16
(g)
Domestic
violence
as
defined
in
section
39
-
6303,
Idaho
Code,
17
whether
or
not
in
the
presence
of
the
child.
18
(2)
If
the
parent
has
a
disability
as
defined
in
this
section
32
-
721,
19
Idaho
Code
,
the
parent
shall
have
the
right
to
provide
evidence
and
informa
-
20
tion
regarding
the
manner
in
which
the
use
of
adaptive
equipment
or
support
-
21
ive
services
will
enable
the
parent
to
carry
out
the
responsibilities
of
par
-
22
enting
the
child.
The
court
shall
advise
the
parent
of
such
right.
Evalua
-
23
tions
of
parental
fitness
shall
take
into
account
the
use
of
adaptive
equip
-
24
ment
and
supportive
services
for
parents
with
disabilities
and
shall
be
con
-
25
ducted
by,
or
with
the
assistance
of,
a
person
who
has
expertise
concerning
26
such
equipment
and
services.
Nothing
in
this
section
shall
be
construed
to
27
create
any
new
or
additional
obligations
on
state
or
local
governments
to
28
purchase
or
provide
adaptive
equipment
or
supportive
services
for
parents
29
with
disabilities.
30
(3)
In
any
case
where
the
child
is
actually
residing
with
a
grandparent
31
in
a
stable
relationship,
the
court
may
recognize
the
grandparent
as
having
32
the
same
standing
as
a
parent
for
evaluating
what
custody
arrangements
are
in
33
the
best
interests
of
the
child.
purposes
of
presenting
evidence
regarding
34
the
child's
best
interests,
but
not
for
purposes
of
diminishing,
supplant
-
35
ing,
or
rebutting
the
fundamental
parental
rights.
Nothing
in
this
subsec
-
36
tion
shall
create
a
presumption
in
favor
of
a
de
facto
custodian
over
a
fit
37
parent.
38
(4)
As
used
in
this
chapter:
39
(a)
"Adaptive
equipment"
means
any
piece
of
equipment
or
any
item
that
40
is
used
to
increase,
maintain
or
improve
the
parenting
capabilities
of
a
41
parent
with
a
disability.
42
(b)
"Disability"
means,
with
respect
to
an
individual,
any
mental
or
43
physical
impairment
which
substantially
limits
one
(1)
or
more
ma
-
44
jor
life
activities
of
the
individual
including,
but
not
limited
to,
45
self
-
care,
manual
tasks,
walking,
seeing,
hearing,
speaking,
learn
-
46
ing
or
working,
or
a
record
of
such
an
impairment,
or
being
regarded
as
47
having
such
an
impairment.
Disability
shall
not
include
transvestism,
48
transsexualism,
pedophilia,
exhibitionism,
voyeurism,
other
sexual
49
3
behavior
disorders,
substance
use
disorders,
compulsive
gambling,
1
kleptomania
or
pyromania.
Sexual
preference
or
orientation
is
not
2
considered
an
impairment
or
disability.
Whether
an
impairment
sub
-
3
stantially
limits
a
major
life
activity
shall
be
determined
without
4
consideration
of
the
effect
of
corrective
or
mitigating
measures
used
5
to
reduce
the
effects
of
the
impairment.
6
(c)
"Supportive
services"
means
services
which
assist
a
parent
with
a
7
disability
to
compensate
for
those
aspects
of
their
disability
which
8
affect
their
ability
to
care
for
their
child
and
which
will
enable
9
them
to
discharge
their
parental
responsibilities.
The
term
includes
10
specialized
or
adapted
training,
evaluations,
or
assistance
with
ef
-
1
1
fective
use
of
adaptive
equipment,
and
accommodations
which
allow
a
12
parent
with
a
disability
to
benefit
from
other
services,
such
as
braille
13
texts
or
sign
language
interpreters.
14
(5)
(4)
Nothing
in
this
chapter
shall
be
construed
to
allow
discrimina
-
15
tion
on
the
basis
of
disability.
In
any
case
where
the
disability
of
a
parent
16
is
found
by
the
court
to
be
relevant
to
an
award
of
custody
of
a
child,
the
17
court
shall
make
specific
findings
concerning
the
disability
and
what
ef
-
18
fect,
if
any,
the
court
finds
the
disability
has
on
the
best
interests
of
the
19
child.
20
(6)
(5)
With
reference
to
this
section,
when
an
active
member
of
the
21
Idaho
national
guard
has
been
ordered
or
called
to
duty
as
defined
in
section
22
46
-
409,
Idaho
Code,
or
when
a
member
of
the
military
reserve
is
ordered
to
ac
-
23
tive
federal
service
under
title
10,
United
States
Code,
such
military
ser
-
24
vice
thereunder
shall
not
be
a
substantial
or
material
and
permanent
change
25
in
circumstance
to
modify
by
reducing
the
member's
previously
decreed
child
26
custody
and
visitation
privileges.
27
(6)
Prior
to
any
contested
divorce
or
custody
proceeding
being
set
for
28
trial,
the
court
shall
require
the
parties
to
participate
in
alternative
29
dispute
resolution,
including
but
not
limited
to
mediation
or
a
judicial
30
settlement
conference,
absent
good
cause.
31
SECTION
3.
That
Section
32
-
717B,
Idaho
Code,
be,
and
the
same
is
hereby
32
amended
to
read
as
follows:
33
32
-
717B.
JOINT
PRESUMPTION
IN
FAVOR
OF
EQUAL
CUSTODY
ALLOCATION
.
(1)
34
"Joint
custody"
means
an
order
awarding
custody
of
the
minor
child
or
chil
-
35
dren
to
both
parents
and
providing
that
physical
custody
shall
be
shared
by
36
the
parents
in
such
a
way
as
to
assure
the
child
or
children
of
frequent
and
37
continuing
contact
with
both
parents.
The
court
may
award
either
joint
phys
-
38
ical
custody
or
joint
legal
custody
or
both
as
between
the
parents
or
parties
39
as
the
court
determines
is
for
the
best
interests
of
the
minor
child
or
chil
-
40
dren.
If
the
court
declines
to
enter
an
order
awarding
joint
custody,
the
41
court
shall
state
in
its
decision
the
reasons
for
denial
of
an
award
of
joint
42
custody.
43
(2)
"Joint
physical
custody"
means
an
order
awarding
each
of
the
par
-
44
ents
significant
periods
of
time
in
which
a
child
resides
with
or
is
under
the
45
care
and
supervision
of
each
of
the
parents
or
parties.
46
Joint
physical
custody
shall
be
shared
by
the
parents
in
such
a
way
to
47
assure
the
child
a
frequent
and
continuing
contact
with
both
parents
but
does
48
not
necessarily
mean
the
child's
time
with
each
parent
should
be
exactly
the
49
4
same
in
length
nor
does
it
necessarily
mean
the
child
should
be
alternating
1
back
and
forth
over
certain
periods
of
time
between
each
parent.
2
The
actual
amount
of
time
with
each
parent
shall
be
determined
by
the
3
court.
4
(3)
"Joint
legal
custody"
means
a
judicial
determination
that
the
par
-
5
ents
or
parties
are
required
to
share
the
decision
-
making
rights,
responsi
-
6
bilities
and
authority
relating
to
the
health,
education
and
general
welfare
7
of
a
child
or
children.
8
(4)
(1)
Except
as
provided
in
subsection
(5),
(2)
of
this
section,
ab
-
9
sent
a
preponderance
of
the
evidence
showing
of
good
cause
by
clear
and
con
-
10
vincing
evidence
to
the
contrary,
there
shall
be
a
presumption
that
joint
1
1
custody
substantially
equal
parenting
time
and
joint
legal
custody
is
in
the
12
best
interests
of
a
minor
child
or
children.
If
the
court
declines
to
enter
13
an
order
awarding
substantially
equal
parenting
time
and
joint
legal
cus
-
14
tody,
the
court
shall
state
in
its
decision
the
reasons
for
denial
of
an
award
15
of
substantially
equal
parenting
time
and
joint
legal
custody.
16
(5)
(2)
There
shall
be
a
presumption
that
joint
custody
substantially
17
equal
parenting
time
and
joint
legal
custody
is
not
in
the
best
interests
of
18
a
minor
child
if
one
(1)
of
the
parents
is
found
by
the
court
to
be
a
habitual
19
perpetrator
of
domestic
violence
as
defined
in
section
39
-
6303,
Idaho
Code.
20
SECTION
4.
That
Chapter
7,
Title
32,
Idaho
Code,
be,
and
the
same
is
21
hereby
amended
by
the
addition
thereto
of
a
NEW
SECTION
,
to
be
known
and
des
-
22
ignated
as
Section
32
-
721,
Idaho
Code,
and
to
read
as
follows:
23
32
-
721.
DEFINITIONS.
For
the
purpose
of
this
chapter:
24
(1)
"Adaptive
equipment"
means
equipment
used
to
enhance
the
parenting
25
capabilities
of
a
parent
with
a
disability.
26
(2)
"Custodial
parent"
means
a
parent
awarded
more
than
substantially
27
equal
physical
custody
of
the
parent's
child,
or,
if
no
order
exists,
the
28
parent
providing
the
child's
principal
residence
more
than
fifty
-
five
per
-
29
cent
(55%)
of
the
time.
30
(3)
"Custodian"
means
a
parent
or
other
adult
recognized
by
the
court
31
as
having
standing
to
exercise
care,
supervision,
or
custody
of
a
child,
in
-
32
cluding
grandparents
in
stable,
ongoing
caregiving
arrangements.
33
(4)
"Custody"
means
responsibility
for
a
child,
including
legal,
phys
-
34
ical,
joint,
or
sole
custody.
35
(5)
"Disability"
means
a
mental
or
physical
impairment
substantially
36
limiting
a
major
life
activity.
"Disability"
does
not
include
sexual
orien
-
37
tation,
sexual
behavior
disorders,
substance
use
disorders,
compulsive
gam
-
38
bling,
kleptomania,
or
pyromania.
39
(6)
"Joint
legal
custody"
means
equally
shared
decision
-
making
rights,
40
responsibilities,
and
authority
relating
to
the
health,
education,
and
gen
-
41
eral
welfare
of
a
child,
unless
otherwise
specified
in
a
court
order.
42
(7)
"Joint
physical
custody"
means
equal
periods
of
residence
or
su
-
43
pervision,
except
for
temporary
deviations
for
events
such
as
documented
44
travel,
military
deployment,
temporary
relocation,
or
medical
conditions.
45
(8)
"Legal
custody"
means
the
right
and
responsibility
to
make
major
46
decisions
regarding
the
child's
upbringing,
including
health,
education,
47
and
welfare.
48
5
(9)
"Non
-
custodial
parent"
means
a
parent
with
less
than
forty
-
five
1
percent
(45%)
physical
custody
of
the
parent's
child.
2
(10)
"Parent"
means
a
biological
or
adoptive
mother
or
father
whose
3
parental
rights
are
not
terminated.
"Parent"
does
not
include
persons
4
serving
in
loco
parentis,
de
facto
caregivers,
temporary
guardians,
or
5
court
-
ordered
visitation
-
only
persons.
6
(11)
"Parental
fitness"
means
the
ability
to
provide
for
the
child's
7
health,
safety,
education,
and
welfare,
including
consistent
parenting.
8
(12)
"Parenting
time"
means
periods
of
time
during
which
a
parent
exer
-
9
cises
care
of
and
interaction
with
the
child.
Parenting
time
reflects
inher
-
10
ent
parental
rights
and
may
be
structured
by
court
order.
1
1
(13)
"Physical
custody"
means
the
legal
allocation
of
day
-
to
-
day
care
12
of
the
child.
13
(14)
"Sole
legal
custody"
means
the
exclusive
authority
to
make
major
14
decisions
regarding
the
child's
upbringing,
including
health,
education,
15
and
welfare.
16
(15)
"Sole
physical
custody"
means
the
exclusive
right
and
responsibil
-
17
ity
for
primary
residence
and
daily
care
of
the
child,
subject
to
parenting
18
time
rights
of
the
other
parent.
19
(16)
"State"
includes
the
legislative,
executive,
and
judicial
20
branches
of
government.
21
(17)
"Substantially
equal
parenting
time"
means
both
parents
have
equal
22
legal
custody
and
nearly
equal
physical
custody
of
the
child,
with
each
par
-
23
ent
having
physical
custody
of
the
child
at
least
forty
-
five
percent
(45%)
of
24
the
time.
25
(18)
"Supportive
services"
means
services
that
aid
a
parent
with
a
dis
-
26
ability
in
fulfilling
parental
responsibilities.
27
SECTION
5.
That
Section
32
-
1705,
Idaho
Code,
be,
and
the
same
is
hereby
28
amended
to
read
as
follows:
29
32
-
1705.
NATURE
OF
DE
FACTO
CUSTODIAN
ORDER
-
-
ACCESS
TO
RECORDS
-
-
30
TERMINATION
OF
DE
FACTO
CUSTODIANSHIP.
(1)
A
court
may
enter
an
order
grant
-
31
ing
a
de
facto
custodian
sole
or
joint
legal
and/or
physical
custody
as
32
defined
in
section
32
-
717B(1),
(2)
and
(3)
32
-
721
,
Idaho
Code,
in
the
same
33
manner
as
it
would
grant
such
custody
to
a
parent.
34
(2)
An
order
granting
custody
to
a
de
facto
custodian
is
subject
to
the
35
continuing
jurisdiction
of
the
court
and
is
modifiable
in
the
same
manner
36
as
an
order
establishing
parental
custody
pursuant
to
section
32
-
717,
Idaho
37
Code,
or
a
similar
provision.
38
(3)
A
de
facto
custodian
who
has
been
granted
sole
or
joint
legal
cus
-
39
tody
of
a
child
shall
have
access
to
records
pertaining
to
the
child
who
is
40
the
subject
of
the
de
facto
custodianship
to
the
same
extent
as
a
parent
would
41
have
such
access
pursuant
to
an
order
of
legal
custody.
42
(4)
Any
party
to
the
proceeding
granting
custody
to
a
de
facto
custodian
43
may
move
for
the
termination
of
the
custody
order.
A
de
facto
custodian
may
44
move
for
permission
to
resign
as
de
facto
custodian.
45
(a)
A
party
moving
for
termination
of
the
de
facto
custodian
-
child
re
-
46
lationship
must
show
by
a
preponderance
of
the
evidence
that
termina
-
47
tion
of
the
relationship
would
be
in
the
best
interests
of
the
child.
48
6
(b)
A
motion
for
termination
or
for
resignation
may,
but
need
not,
in
-
1
clude
a
proposal
for
the
continuing
custody
of
the
child.
2
(c)
After
notice
and
hearing
on
a
motion
for
termination
or
resigna
-
3
tion,
the
court
may
terminate
the
custody
of
the
de
facto
custodian
and
4
may
make
any
further
orders
that
may
be
appropriate
in
the
best
inter
-
5
ests
of
the
child.
6
SECTION
6.
This
act
shall
be
in
full
force
and
effect
on
and
after
Jan
-
7
uary
1,
2027.
8