When assisting grandparents with concerns about the custody and wellbeing of their grandchildren, there are more options in Idaho other than seeking a guardianship. As explained by the Idaho Supreme Court in Overholser v. Overholser, 164 Idaho 503, 432 P.3d 52 (2018), grandparents in Idaho hold several “keys to the courthouse” in such situations:
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The De Facto Custodian Act under Idaho Code § 32-1701
In certain situations, a grandparent can be deemed a de facto custodian of a grandchild(ren). Idaho Code § 32-1703 lays out the requirements essentially stating the grandparent must be related by blood to the child and must have been the primary caretaker of the child for a specific amount of time (differs based on the child’s age) “without a parent [of the child] present and with a lack of demonstrated consistent participation by a parent.”
Intervention in a divorce case under Idaho Code § 32-717(3)
This one is under the divorce statutes and only applies as follows: “In any case where the child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interests of the child.”
Grandparent Visitation Rights under Idaho Code § 32-719
This one is also short and found under the divorce statutes: “The district 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.”
Minor Guardianship under Idaho Code § 15-5-204
This is the general minor guardianship statute under the probate code in Idaho. The petitioning grandparent will have to show that the grandchild was neglected, abused, abandoned, or the grandchild’s parents cannot provide a stable home environment. In contrast to the options above, guardianships like this can put a larger wedge between the grandparent and their own child all in the name of the grandchild’s best interest. Note that the Court Assistance Office in Idaho has self-help forms under this statute available HERE. You can even complete and file the forms online through a new feature on that website.
And... What about Troxel?
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 L.Ed.2d 49 (2000) is a US Supreme Court ruling where a plurality of the Justices invalidated a Washington State statute regarding third-party custody rights because it was “breathtakingly broad” given the constitutional right to parent and the special weight parental opinions should be given concerning their children. In the wake of Troxel, Idaho Courts deemed the Idaho grandparent's rights statutes listed above as constitutional in Overholser and Hernandez v. Hernandez, 151 Idaho 882, 265 P.3d 495, (2011). The key to establishing the statutes as constitutional under the Idaho Supreme Court’s reasoning is (1) a narrow construction applied to the statutes and (2) addressing and deferring to a parent's constitutional rights to raise his or her child when the parent is otherwise fit.
