Idaho Grandparents' Rights

Grandparents walking outdoors with grandson
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The state statutes of Idaho contain a single sentence about grandparent visitation rights. "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."

Idaho occupies an unusual position. Due to the brevity of its statute, Idaho cannot be clearly designated as either permissive or restrictive in regard to grandparents' rights.

It falls somewhat on the permissive side because it offers no special protection from suit to intact families. Grandparents can sue for visitation even if the parents of their grandchildren are still married. 

Another Idaho law also comes into play in some grandparent visitation cases, as you will see below.

A Relevant Idaho Case

A 2011 case, Hernandez v. Hernandez, can be construed as positive for grandparents. In order to understand this case, you must realize that when a grandparent is given the right to take possession of a grandchild, even for a short time, that can be considered physical custody. So a grandparent's visitation rights can be considered temporary physical custody.

Here are the details of the case. After Charles and Kerri Hernandez divorced, Kerri was given custody of the couple's two children, with Charles to have visitation (temporary physical custody) during the summer.

Charles moved to Texas. Kerri subsequently became addicted to drugs and left the couple's two children with her mother, Janice Ausburn, the grandparent in this case. Ausburn raised the children in her home for about six years. Charles paid some support and spoke with the children occasionally by phone.

Kerri, the mother of the children, had no contact with them.

In 2008 the parents got together and agreed to reverse their custody arrangement, with Charles having custody of the children and Kerri having visitation. They were able to make this agreement because Ausburn had never filed for custody. This is a classic example of why grandparents raising grandchildren should seek custody.

Upon learning of the new arrangement, Ausburn did file for custody. Over the objections of Charles, Ausburn was awarded six weeks of visitation during the summer. The court cited a different Idaho law, I.C. § 32-717(3), which reads: "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." Following this decision, Charles appealed the case.

The argument put forward by Charles was that the Idaho laws regarding grandparents' rights were unconstitutional when viewed in light of the U.S. Supreme Court's decision in Troxel v. Granville. That decision stated that decisions made by fit parents were presumed to be in the best interests of the child.

Charles argued that because he had not been proven unfit, the court should respect his decision and deny Ausburn visitation. Ausburn argued that she would not have been able to become the primary caregiver for her grandchildren without Charles' consent. 

The Idaho Supreme Court agreed with Auburn, stating that the trial judge had considered the best interests of the children and the "strong bond" they had formed with Janice. "After considering at length what would be in the best interest of the children, the magistrate concluded that Charles should have sole legal custody and he should share physical custody with Janice. The magistrate thus gave due regard to Charles’ parental rights, but balanced them with the competing interests of the children."

Attempts to Revise Idaho Law

In 2009 the Idaho State Senate proposed a more detailed draft of grandparent visitation rights, Senate Bill 1105.

Advocates for grandparents' rights did not support this bill as it set a very high standard for winning visitation. First, grandparents could not sue for visitation if there was an intact marital relationship between the parents (an intact family). Also, the bill required that grandparents meet the harm standard -- show that the grandchild would suffer harm if visitation were denied. The bill died at the end of the legislative session.