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Charles V. Hernandez v. Kerri A. Hernandez

November 2, 2011


Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Elmore County. Hon. George G. Hicks, Magistrate Judge; Hon. Michael E. Wetherell, District Judge.

The opinion of the court was delivered by: J. Jones, Justice.

2011 Opinion No. 108

Stephen W. Kenyon, Clerk

The decision of the district court is affirmed.

This case involves a custody dispute between Charles V. Hernandez, the biological father of two minor children, and Janice Ausburn, the children's maternal grandmother. The magistrate court granted shared physical custody to Charles and Janice. Charles appealed to the district court, which affirmed. We affirm the district court.


Charles V. Hernandez and Kerri A. Hernandez divorced in Elmore County in September 2000. Charles and Kerri had two minor children at the time. Before their divorce, Charles and Kerri briefly lived with Kerri's mother, Janice Ausburn, in Houston, Texas. Janice also briefly lived with the couple in Mountain Home before the divorce. Janice moved into her own place in Mountain Home just before Charles and Kerri divorced. After the divorce, Charles moved to Houston, Texas, and has lived there since. In the divorce decree, the court awarded Kerri primary physical custody and Charles reasonable visitation, including four weeks each summer.

In March 2001, Kerri left the children with Janice because Kerri was struggling with drug addiction. The children continued to live with Janice and she raised them without physical help from Charles or Kerri. One of the children, an infant at the time, did live with a maternal aunt for about a year and a half while Janice recovered from shoulder surgery, but the children otherwise lived with Janice exclusively. Charles had no physical contact with the children between November 2002 and early 2008. He did occasionally speak with the children by phone over the years. Charles also paid some child support until March 2008, when this action was filed. Kerri continued to struggle with personal issues and had nothing to do with the children after turning them over to Janice. Despite acting as the children's primary custodian, Janice never petitioned a court for guardianship.

In March 2008, Charles and Kerri stipulated to a change in the custody arrangement, whereby Charles would have sole physical custody of the children and Kerri would have visitation each summer. The court entered a modification order based on the stipulation. The court was unaware that the children were actually residing with Janice when it entered the order. Janice was not made aware of either the stipulation or the order.

After the court entered the modification order, Charles and Kerri planned for Kerri to take the children from school in Mountain Home, without telling Janice, and to meet Charles in Salt Lake City, Utah. The couple agreed that Kerri would hand over the children and Charles would take them to Houston. Janice found out about the plan and kept the boys home from school on the day Kerri was to take them. Janice then filed a separate action for custody.

In the subsequent custody proceeding, the court considered whether Charles or Janice should be the children's primary custodian. The court ultimately granted Charles sole legal custody and Charles and Janice shared physical custody, with Charles having primary custody and Janice having custody for six weeks during the summers. The court based its decision largely on a court-ordered parenting assessment and custody recommendation prepared by a third-party evaluator.

Charles appealed the magistrate court's decision to the district court. He did not challenge the magistrate judge's factual findings but, rather, argued the award of limited custodial rights to Janice violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In its decision affirming the magistrate court, the district court noted, "None of the substantive factual findings of the Magistrate Court are at issue for purposes of this decision. The only question before this Court is whether Idaho law as applied and/or on its face is in contradiction to established United States Supreme Court precedent." Charles filed a timely appeal to this Court.*fn1


The following issues are presented on appeal:

(1) Whether I.C. § 32-717(3) facially violates the Fourteenth Amendment?

(2) Whether I.C. § 32-717(3) is unconstitutional as applied in this case?

(3) Whether this Court's holding in Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989) ...

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