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In re Doe

September 7, 2010

IN THE MATTER OF JOHN DOE, A MINOR CHILD.
JOHN DOE I, PLAINTIFF-RESPONDENT,
v.
JANE DOE, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fifth Judicial District of the State of Idaho, in and for Twin Falls County. The Hon. Thomas D. Kershaw, Magistrate Judge.

The opinion of the court was delivered by: Eismann, Chief Justice.

2010 Opinion No. 96

The order of the magistrate court is affirmed.

This is an appeal from an order modifying the custody provisions in a divorce decree on the ground that Mother was engaging in a pattern of dysfunctional behavior showing that she was completely irrational with regard to sharing custody of their child with Father and that Mother's behavior was negatively impacting the child's relationship with Father. We affirm the order of the magistrate court.

I. FACTS AND PROCEDURAL HISTORY

John Doe I (Father) and Jane Doe I (Mother) were married on August 30, 2003, but they separated about four months later. They have a son who was born in March of 2004. On November 5, 2004, Father filed for divorce, and the divorce decree was entered on September 9, 2005. The parties were granted joint legal and physical custody of their son, with Mother being granted primary physical custody. Father was to have ―the right to actual physical custody of said child at such times and in such a way as to assure said child a frequent and continuing contact with both parties, in order that each of said parties might foster and preserve the parent-child relationship.‖

On June 27, 2007, Father filed a motion to modify the decree to grant him sole legal custody and primary physical custody of the parties' son on the ground that Mother had engaged in a pattern of denying him access to the child. The motion was tried during six days from August 27 to December 12, 2008.*fn1 After post-trial briefing by the parties, on February 13, 2009, the Magistrate entered findings of fact and an order granting Father's motion.

Based upon Mother's course of conduct since the divorce, the magistrate found: ―It must be said that she is completely irrational on the subject of sharing this child with his father. She seems strangely unaware of the inconvenience and difficulty which her actions cause to others, and of the damage which these behaviors can do to her child.‖ Noting that Mother continued attempting to deny Father access to their son while the motion to amend the decree was pending, even up to a week or two before the trial started, the magistrate wrote that he ―is not persuaded that [Mother] understands her dysfunctional role in these problems; or has, at present, the maturity to change it.‖ The magistrate concluded that the best chance for the parties' son to be raised by mature adults was for Father to have primary physical custody. Father had remarried in April 2006.

After denying Mother's motion for reconsideration, the court entered an order on April 16, 2009, modifying the divorce decree by granting Father sole legal custody and primary physical custody of the parties' son. The order also set forth the specific times that Mother would have physical custody. Mother requested permission to appeal directly to this Court, and we granted that motion. She then timely filed a notice of appeal.

II. ISSUES ON APPEAL

1. Did the magistrate abuse his discretion in modifying the divorce decree?

2. Is Father entitled to an award of attorney fees on appeal?

III. ANALYSIS

A. Did the Magistrate Abuse His Discretion in Modifying ...


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