from the Magistrate Court of the Fifth Judicial District of
the State of Idaho, Twin Falls County. Hon. Thomas D.
Kershaw, Jr., Magistrate Judge.
Order Denying Standing, vacated, and the case is
remanded for further proceedings consistent with this
Law Offices, Twin Falls, for appellants. Daniel S. Brown
Nielson, Barini-Garcia & Platts, Twin Falls, for
respondent. Seth C. Platts argued.
appeal arises from the denial of standing to custodial
grandparents under Idaho Code section 32-717(3). The mother
placed her twelve-year-old son in the care of his
grandparents on a full time basis in August 2017. Three
months later the father petitioned the magistrate court to
modify custody to grant him residential custody of his son.
Although both Mother and Grandparents petitioned the court to
give Grandparents residential custody, the magistrate court,
during a hearing on father's motion for temporary
custody, determined that Grandparents did not have standing.
Ruling from the bench, the magistrate court determined that
Idaho Code section 32-717(3) on its face violated the
father's constitutional rights because it placed
Grandparents on the same footing as parents. The magistrate
court also reasoned that the more specific time requirements
set forth in the De Facto Custodian Act, Idaho Code sections
32-1701-32-1705, (I.C. § 32-1703) should govern. On a
motion for reconsideration, the magistrate court, appearing
to recognize our decision in Hernandez v. Hernandez,
151 Idaho 882, 884-86, 265 P.3d 495, 497-99 (2011) wherein we
held that Idaho Code section 32-717(3) is constitutional,
decided that Grandparents likely could not meet the
requirements of Idaho Code section 32-717(3), reasoning that
"[t]he court doubts that a short period of residence
pursuant to an impermanent permission by one parent is a
and Grandparents were granted permission to appeal the
magistrate court's decision to this Court. On appeal,
they argue that the magistrate court's decision is
contrary to this Court's decision in Hernandez.
We agree and vacate the magistrate's order denying
standing and remand with instructions to determine whether
Child was living with Grandparents at the time they
petitioned the court and whether a stable relationship
existed between them. If yes, the Grandparents should be
allowed to participate in the custody determination within
the boundaries set forth in Hernandez.
FACTUAL AND PROCEDURAL BACKGROUND
is thirteen-years-old. Mother and Father have been married
to, and divorced from, each other twice. The magistrate court
has managed Mother and Father's divorce proceedings,
including custody amendments for Child, since September 2011.
to this dispute, Mother and Father had joint legal and
physical custody of Child with Mother having residential
custody. Father received custodial access, exercised his
visitation rights, and has paid child support. Child also
resided with both parents for the times Mother and Father
resumed their relationship.
answer to Father's petition for custody, Mother alleges
that Child developed difficult behavior over the last few
years-becoming "progressively disrespectful, rebellious,
and impossible to control"-which led her to leave him in
the care of her father and step-mother
("Grandparents"). Mother alleges that Grandparents
moved to Twin Falls to help Mother raise Child. Having
acquired a home five doors down from Mother, Grandparents
picked Child up every day from school, assisted with his
homework, and otherwise provided everyday care of Child.
Mother and Grandparents contend that Child's behavior at
home and school dramatically improved as he resided with
to Father's petition, after Child moved in with his
Grandparents in August 2017, Father briefly moved to Twin
Falls, residing with Grandparents "off and on" as
he transitioned his residence to Idaho. However, Father later
moved back to Elko, Nevada and currently resides there. In
January 2018, Mother also relocated to Elko after marrying
November 2, 2017, Father filed a petition and motion to
modify custody and support in the divorce proceeding so that
Father would have residential custody of Child. Mother then
filed an answer and counterclaim, asking the court to give
residential custody to Grandparents, subject to custodial
access by both Mother and Father. Grandparents subsequently
filed a Motion to Intervene and Petition for Custody. After
filing a response to Mother's counterclaim, Father filed
a Motion for Temporary Custody and Temporary Child Support.
Two weeks later, the magistrate court granted
Grandparent's Motion to Intervene. Both Mother and
Grandparents then filed Declarations in Opposition to
Father's Motion for Temporary Orders.
magistrate court held a hearing on Father's motion for
temporary custody. At its conclusion, the magistrate court
granted Father temporary custody, and expressed concern over
the meaning of "stable relationship" in Idaho Code
section 32-717(3). The magistrate court explained:
"…if we interpret this [statute] according to its
clear, its meaning on its face, … then that's a
pretty serious dent in a parent's constitutional right to
parent their child. …I just think that's probably
unconstitutional." The magistrate court also expressed
concerns the statute would render the De Facto Custodian Act
"pointless" and give a "third party equal
standing with the parent to have a custody dispute." It
then granted the Father's motion for temporary custody.
next day, Mother and Grandparents jointly filed a Motion to
Reconsider, to which Father filed an objection. The
magistrate court denied the motion. Shortly thereafter the
magistrate court granted Mother's and Grandparent's