Amends and adds to revise provisions regarding Idaho child custody laws.

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 ACT1 RELATING TO CHILD CUSTODY; PROVIDING LEGISLATIVE FINDINGS AND INTENT;2 AMENDING SECTION 32-717, IDAHO CODE, TO REVISE PROVISIONS REGARDING3 CHILD CUSTODY; AMENDING SECTION 32-717B, IDAHO CODE, TO PROVIDE FOR A4 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 CORRECT7 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 finds10 that:11 (a) Parenthood is a natural and fundamental relationship from which12 inherent parental rights and responsibilities arise, protected by the13 United States Constitution and the Constitution of the State of Idaho;14 (b) A parent has the right, obligation, responsibility, and authority15 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 primary18 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; and22 (e) The interests of the state favor preservation and not severance of23 natural familial bonds in circumstances where a positive, nurturing24 parent-child relationship can exist, including extended family associ-25 ation and support. The procedural safeguards contained in this act are26 essential to the best interests of the child.27 (2) The Legislature declares that family court proceedings affecting28 the custody, care, or visitation of a child implicate fundamental liberty29 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 restrictive35 means available;36 (c) Promote transparency, accountability, and timely judicial action37 in all custody matters; and38 (d) Promote stability, reduce unnecessary litigation, and support39 the child's meaningful relationship with fit parents by establishing40 clear, uniform standards for custody determinations.41

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SECTION 2. That Section 32-717, Idaho Code, be, and the same is hereby1 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 parenting4 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 marriage6 as may seem necessary or proper in the best interests of the children. The7 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 her11 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 the15 child; and16 (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 concerning26 such equipment and services. Nothing in this section shall be construed to27 create any new or additional obligations on state or local governments to28 purchase or provide adaptive equipment or supportive services for parents29 with disabilities.30 (3) In any case where the child is actually residing with a grandparent31 in a stable relationship, the court may recognize the grandparent as having32 the same standing as a parent for evaluating what custody arrangements are in33 the best interests of the child. purposes of presenting evidence regarding34 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 fit37 parent.38 (4) As used in this chapter:39 (a) "Adaptive equipment" means any piece of equipment or any item that40 is used to increase, maintain or improve the parenting capabilities of a41 parent with a disability.42 (b) "Disability" means, with respect to an individual, any mental or43 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 as47 having such an impairment. Disability shall not include transvestism,48 transsexualism, pedophilia, exhibitionism, voyeurism, other sexual49

3 behavior disorders, substance use disorders, compulsive gambling,1 kleptomania or pyromania. Sexual preference or orientation is not2 considered an impairment or disability. Whether an impairment sub-3 stantially limits a major life activity shall be determined without4 consideration of the effect of corrective or mitigating measures used5 to reduce the effects of the impairment.6 (c) "Supportive services" means services which assist a parent with a7 disability to compensate for those aspects of their disability which8 affect their ability to care for their child and which will enable9 them to discharge their parental responsibilities. The term includes10 specialized or adapted training, evaluations, or assistance with ef-11 fective use of adaptive equipment, and accommodations which allow a12 parent with a disability to benefit from other services, such as braille13 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 parent16 is found by the court to be relevant to an award of custody of a child, the17 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 the19 child.20 (6) (5) With reference to this section, when an active member of the21 Idaho national guard has been ordered or called to duty as defined in section22 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 change25 in circumstance to modify by reducing the member's previously decreed child26 custody and visitation privileges.27 (6) Prior to any contested divorce or custody proceeding being set for28 trial, the court shall require the parties to participate in alternative29 dispute resolution, including but not limited to mediation or a judicial30 settlement conference, absent good cause.31

SECTION 3. That Section 32-717B, Idaho Code, be, and the same is hereby32 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 by36 the parents in such a way as to assure the child or children of frequent and37 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 parties39 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, the41 court shall state in its decision the reasons for denial of an award of joint42 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 the45 care and supervision of each of the parents or parties.46 Joint physical custody shall be shared by the parents in such a way to47 assure the child a frequent and continuing contact with both parents but does48 not necessarily mean the child's time with each parent should be exactly the49

4 same in length nor does it necessarily mean the child should be alternating1 back and forth over certain periods of time between each parent.2 The actual amount of time with each parent shall be determined by the3 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 welfare7 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 joint11 custody substantially equal parenting time and joint legal custody is in the12 best interests of a minor child or children. If the court declines to enter13 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 award15 of substantially equal parenting time and joint legal custody.16 (5) (2) There shall be a presumption that joint custody substantially17 equal parenting time and joint legal custody is not in the best interests of18 a minor child if one (1) of the parents is found by the court to be a habitual19 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 is21 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 parenting25 capabilities of a parent with a disability.26 (2) "Custodial parent" means a parent awarded more than substantially27 equal physical custody of the parent's child, or, if no order exists, the28 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 court31 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 substantially36 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 documented44 travel, military deployment, temporary relocation, or medical conditions.45 (8) "Legal custody" means the right and responsibility to make major46 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-five1 percent (45%) physical custody of the parent's child.2 (10) "Parent" means a biological or adoptive mother or father whose3 parental rights are not terminated. "Parent" does not include persons4 serving in loco parentis, de facto caregivers, temporary guardians, or5 court-ordered visitation-only persons.6 (11) "Parental fitness" means the ability to provide for the child's7 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.11 (13) "Physical custody" means the legal allocation of day-to-day care12 of the child.13 (14) "Sole legal custody" means the exclusive authority to make major14 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 parenting18 time rights of the other parent.19 (16) "State" includes the legislative, executive, and judicial20 branches of government.21 (17) "Substantially equal parenting time" means both parents have equal22 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%) of24 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 hereby28 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 as32 defined in section 32-717B(1), (2) and (3) 32-721, Idaho Code, in the same33 manner as it would grant such custody to a parent.34 (2) An order granting custody to a de facto custodian is subject to the35 continuing jurisdiction of the court and is modifiable in the same manner36 as an order establishing parental custody pursuant to section 32-717, Idaho37 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 is40 the subject of the de facto custodianship to the same extent as a parent would41 have such access pursuant to an order of legal custody.42 (4) Any party to the proceeding granting custody to a de facto custodian43 may move for the termination of the custody order. A de facto custodian may44 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 and4 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