BOISE, ID – A task force of Idaho lawmakers is trying to zero in on potential legislative changes they could propose to address the complaints they receive about the state’s child custody and domestic relations system.

Lawmakers will likely look to address how to handle imbalance in power and resources among parents who are challenging each other for custody of their children, and how to protect parents’ rights to see their children while balancing the safety of the child and keeping them out of potentially dangerous or abusive situations.

The Child Custody and Domestic Relations Task Force met Thursday in Idaho Falls in a lengthy meeting with current and former judges, a trial administrator, a state health agency bureau chief, and three hours of public testimony regarding residents’ personal experiences with child custody battles.

The task force members questioned family law experts on ways to improve financial inequality in cases, boost enforcement of court ordered custody plans, and appeal or provide oversight over judges making these decisions.

“Our purpose here is to consider the law, how it’s being applied and whether it should change,” task force co-chair Rep. Tammy Nichols, R-Middleton, said at the beginning of Thursday’s meeting.

Nichols noted that legislators weren’t there to “second guess” the decisions of individual judges, although dismay at judicial decisions in these matters were at the center of much of the three hours of public testimony.

The task force cannot write legislation but may present recommendations.

Lawmakers question Idaho judges about mediation, attorneys fees   

The task force members heard from former Bonneville County magistrate judge Michelle Mallard, who retired and practiced family law before becoming a Bonneville County commissioner, as well as Bear Lake County Magistrate Judge Todd Garbett.

Rep. Barbara Ehardt, R-Idaho Falls, questioned Mallard about her use of mediation, a process for parents to develop a custody and parenting plan without going to trial.

“That’s something that we are trying to also understand, because that’s not something that everyone is using,” Ehardt said, “and we feel like it’s a tool that maybe can help both with time and with cost.”

Ehardt asked if judges could step in if it became clear one party in mediation was not working in good faith.

Under the rules, mediators cannot tell the judges what is going on in mediation, Mallard responded. But if the mediation fails and the two people go to trial, the judge would be able to tell if one person wasn’t cooperating fully, she said.

Mallard said few of these cases go to trial, but many of the ones that do are very high conflict. She said family case outcomes are “almost entirely by the motivation of their clients.” “I knew people who profess to want a quick resolution, and after a year of negotiation, it became clear to me they really only wanted revenge,” she said.

The use of mediation is widespread among courtrooms, Mallard said, but not required.

If a case does go to trial, a lot of parents represent themselves because the cost of attorneys is high and sometimes the availability of family lawyers is low, Mallard said. When she was a judge, she would utilize an informal trial process, which follows a different set of rules and doesn’t use the traditional question-and-answer model.

Garbett, the Bear County judge, said about 5% of all Idaho child custody cases go to a trial and are decided by a judge.

Sen. James Ruchti, D-Pocatello, and Rep. John Gannon, D-Boise, both of whom are attorneys, repeatedly asked about awarding attorneys fees to the parent who has less money or less access to legal resources; the Democrats suggested that perhaps the law could be re-written to strengthen a judge’s ability to do so.

Mallard said that can be done, but awarding attorneys fees happens at the end and can be a “legal quagmire.”

“The real problem is when you’ve got that imbalance, and you’ve also got this very Ignatius bully who doesn’t care if they spend every last ounce of everyone’s resources to fight this,” Mallard said. “So you can have both a financial imbalance and an emotional imbalance, where some people, even if they have enough money, one party is just not going to fight and the other is.”

Judge doesn’t see way to ‘legislate our way’ out of fixing child custody disputes

Committee co-Chair Rep. Heather Scott, R-Blanchard, said she kept getting comments from the public about parental rights being taken from one parent and given to the other and asked if that was happening in these trials.

Garbett specified that termination of parental rights under the law is a rare and specific process, which can be directly and expeditiously appealed to the Idaho Supreme Court.

“I suspect the way more people are using that is I’ve lost some of my time with the child, or ability to make decisions for the child, and maybe that translates into them,” Garbett said.
“Using those words, ‘my rights have been taken,’ and those will be a case by case analysis, but I can assure you that as far as actual termination of parental rights, very rare.”

Sen. Carl Bjerke, R-Coeur d’Alene, asked Garbett for suggestions as to how the Legislature could tighten up the code to get fewer complaints regarding decisions and to ensure the wellbeing of the children involved in the decisions.

“There is no way that I can think of that we could legislate our way into not hearing these kinds of stories,” Garbett said. “The problem that we have, is the most difficult case is when you have two parents that sincerely want to spend as much time as possible with their child or children, and they’re earnest and they’re honest.”

He said there’s few decisions that parents are satisfied with in those cases because their time with their children is limited.

“Imagine only 18 Christmases with a child, and then, if it’s a contested case, you might get half, you’re going to miss out on half of those Christmases,” Garbett said. “That’s a terrible thing for a parent to have to go through. Yet that’s what magistrate judges are required to do when parents aren’t going to live together anymore or never have lived together in those maternity cases.”

Public members present hours of grievances against judicial decisions in custody and domestic cases 

Thursday’s meeting included about three hours of personal testimony regarding problems people have faced in domestic and child custody cases.

The testimony often was emotional, detailing experiences such as those of parents with less money to fight for their children’s custody, other frustrated parents who didn’t feel their judge considered the evidence they presented, and fathers who feel the system automatically favors mothers.

One father said that in his case, he initially had 50/50 custody with his ex wife, but upon his remarriage and “typical adolescent changes” as his child turned 12 and 13, his custody plan was reduced.

He suggested that Idaho adopt a standard 50/50 parenting plan, with room for changes on a case-by-case basis.

“Critics argue that 50/50 isn’t always feasible,” he said. “That’s true, but a default standard doesn’t mean one-size-fits-all, it simply means we start from equal footing and adjust when necessary. In my case, no evidence was presented to justify reducing my time. A default standard would have preserved our original agreement and prevented years of emotional strain on my child and our family.”

Danielle Hendricks, a sergeant detective in the Williston Police Department in North Dakota, spoke to a case she investigated of a father who had been accused of child abuse by his ex-wife and who was later killed in a Lewiston Rosauers parking lot as he was trying visit his children.

John Mast was shot and killed in 2021 by his ex-father-law, who this month, alongside Mast’s ex-wife, was found criminally liable for Mast’s death, KLEW reported.

Mast lived in North Dakota at the time, and Hendricks investigated the allegations of abuse against him. Mast was found clear of any wrongdoing, the detective said.

“I share this story not just to recount a singular tragedy, but to underscore the critical importance of recognizing the devastating impact that false reports can have,” she said. “As a dedicated Child Protection advocate, I believe we must take every allegation seriously, and any person who abuses a child should be held to the highest penalty. But with that being said, we must also ensure that our systems are not misused in any way that leads to irreversible harm to families of children.”

Multiple testifiers expressed support for requiring child abuse and domestic violence experts to be consulted during cases that involve allegations of those crimes. One woman said the judge in her case was not trained in noticing the signs of domestic violence, including coercive control.

Other suggestions included judicial oversight such as an ombudsman to investigate wrongdoing in a case and making it more difficult for custody or non-supervised visitation to be awarded to a parent who is a convicted sex offender.

The task force is scheduled to meet again Sept. 30 in Nampa.

This story first appeared on Idaho Capital Sun.