Recent Idaho Case Upholds Non-Parent Visitation Right

By Heidi Buck Morrison

While most custody cases involve disputes between the child’s biological parents, there can be circumstances when other parties can involve themselves in custody disputes. For example, grandparents and step-parents may become involved in a custody dispute.

In a recent case, Shepherd v. Shepherd, the Idaho Supreme Court affirmed a district court decision in favor of granting a step-parent visitation despite objection by the natural mother.

There, the child spent his first three years of life being raised by the natural mother and step-father. When the natural mother and step-father split, without any involvement by the natural father, the natural mother and step-father agreed to visitation rights by the step-father. The natural father then established paternity, and the natural parents reunited. The natural mother asked the court to modify the decree by voiding the step-father’s visitation rights. The magistrate court determined there had been a material and substantial change that warranted a reduction in the step-father’s visitation, but refused to terminate it in entirety. The natural mother appealed to the district court, which affirmed the magistrate court. The mother then appealed to the Supreme Court.

On appeal, the natural mother argued the court should void the divorce decree and child custody determination for lack of subject matter jurisdiction because there was no legal basis for the court to have awarded the step-father visitation rights with the child. The court held there to be six proceedings or methods where parents can be deprived of their custody right for their child, which theoretically opens the door for allowing a non-parent to gain custody rights.

As the court outlined, the following statutes or cases provide for deprivation of a natural parent’s custody rights:

  • First, I.C. § 32-719 allows the courts to give grandparents reasonable visitation rights under certain circumstances.
  • Second, I.C. § 16-1501, et seq. allows the courts to enter adoption orders.
  • Third, I.C. § 16-1601, et seq. allows the court to enter orders in child protection actions for children subject to child abuse, abandonment, neglect, or endangerment.
  • Fourth, I.C. § 15-5-202, et seq. allows the appointment of guardians of minors where children are neglected, abused, abandoned, or where the parents cannot provide a stable home environment.
  • Fifth, the De Facto Custodian Act, I.C. § 32-1701, et seq.
  • Sixth, Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989) gives non-parents the ability to obtain custody rights in limited, narrow circumstances.

The court went on to discuss the Stockwell rule with regard to custody by a non-parent (i.e., an individual who is neither legal nor natural parent), Under the Stockwell case, “In custody disputes between a ‘non-parent’…and a natural parent, Idaho courts apply a presumption that a natural parent should have custody as opposed to other lineal or collateral relatives or interested parties.” Stockwell, 116 Idaho at 299, 775 P.2d at 613. This presumption is overcome if the non-parent demonstrates: (1) the natural parent has abandoned the child; (2) the natural parent is unfit; or, (3) the child has been in the non-parent’s custody for an appreciable period of time. Id. The court then applies a best interest of the child analysis. Id.

Ultimately, the court determined the mother’s argument regarding jurisdiction was “fundamentally flawed” and the court’s application of Stockwell had no bearing on jurisdiction.

The court also held the mother lacked standing to challenge the initial divorce decree on behalf of the natural father’s due process rights.

In sum¸ the state of the law in Idaho remains that a non-parent may be entitled to visitation rights despite the objection of the natural parents.

If you have a question about child custody, contact Heidi Buck Morrison today for a consultation. Toll free at 877-232-6101 or 208-232-6101. You can also email Heidi Buck Morrison directly at Our attorneys serve all of Idaho, including Firth, Malad, Montpelier, Preston, Soda Springs, American Falls, Blackfoot, Pocatello, Idaho Falls, Rigby, Twin Falls, Rupert, Burley, and Boise.

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