BOISE, ID – A recent Idaho law could slow the process for some child custody disputes and even adoption cases, the Idaho Supreme Court found in a ruling this week.
The law, created in 2025 through Senate Bill 1181, means some Idaho parents who can’t afford legal representation won’t have state-provided defense attorneys in cases that could risk them permanently losing their kids, the court found.
In the opinion, the court alluded to an essentially unenforceable right to public defense in some parental rights termination cases brought by private parties, rather than the state Department of Health and Welfare. That’s because courts can’t require the state’s public defenders to represent parents in those privately brought cases, the Idaho Supreme Court found.
“This gap created by Senate Bill 1181 is vitally important matter that needs to be addressed by the Idaho Legislature. If constitutionally required representation cannot be provided in private termination cases, it will likely result in serious delays or even dismissals of cases affecting Idaho’s children and parents,” Chief Justice G. Richard Bevan wrote in the opinion published Tuesday. “It may mean that children awaiting adoption cannot be adopted.”
The decision comes more than a year after the Legislature passed the bill over the objections of child welfare attorneys, who warned about the bill’s impact on parents’ right to legal counsel. The bill was pitched as a way to control the workload of public defenders as the state overhauled its public defense system.
Attorney says this is the ‘conundrum’ she warned Idaho Legislature about
There are two ways parental rights termination cases can be brought: By the state — often initiated by a state Department of Health and Welfare, or by a private party, such as one parent wanting to end the rights of another parent.
For over 60 years, Idaho law gave parents deemed legally indigent — essentially those who can’t pay legal bills — and who were facing parental rights’ termination cases “with a categorical right to an attorney at public expense,” Bevan explained in the opinion.
But in 2025, he wrote all of that changed when the Legislature passed Senate Bill 1181.
The bill was meant to control the workloads of public defenders as the state consolidated public defense from counties into one statewide office. But at the time, two child welfare attorneys warned the law might inadvertently end the right to legal counsel in privately brought parental right termination cases, the Idaho Capital Sun reported.
One of the attorneys who testified on the bill, Mary Shea from Pocatello, said in an interview that the court described “exactly the conundrum” that she was trying to warn the Legislature about.
“It’s an invitation to the Legislature to fix this, and to provide some kind of a funding mechanism so that those private terminations and adoptions can continue to proceed,” she said. “Because we do have a shortage of attorneys in this state. It is very difficult for us to provide the low-income and pro bono needs for the entire state.”
Sen. Todd Lakey, a Nampa Republican who was the bill’s original sponsor, said in an interview that the Legislature could take up clarifications next year.
“I personally am reluctant to have the taxpayers fund legal costs in a private party termination,” Lakey said on Wednesday. “That said, I recognize that there is a certain situation where it’s constitutionally required, and I want to make sure we’re limiting the burden on the taxpayers to only those situations, where it’s fundamentally required constitutionally. I think as the court noted, that’s kind of a case by case basis, depending on the circumstances.”
Rep. Dustin Manwaring, a Pocatello Republican who also cosponsored the bill, said in an interview that he already has ideas for legislation to address that issue flagged in the ruling.
“When representation is appointed and is constitutionally required, then we need to clarify who’s picking up the tab for that. So, we will do that. And I will personally commit to taking that on and making sure we get that done,” he said.
How the Idaho Supreme Court ruled
The bill, Bevan wrote, requires the State Public Defender’s Office only to represent parents deemed legally indigent in parental rights’ termination cases brought by the state — not by private parties.
“That begs the question: if representation is constitutionally required in a private termination case, who would provide it?” Bevan asked.
Parents in private parental termination cases sometimes still have due process rights to public defense counsel, Bevan wrote, pointing to precedent in the U.S. Supreme Court. But since Idaho courts can no longer order the State Public Defender’s Office or counties to pay for that defense, he wrote that the courts effectively can’t appoint public legal representation in those cases.
“If neither the (State Public Defender’s Office) nor the counties can be required to provide representation, a private termination proceeding may fail to comply with the requirements of due process,” Bevan wrote. “The legislature has eliminated the options available to courts for appointment of counsel at public expense.”
Some parents who are entitled to representation won’t get it, he wrote.
“We have little doubt that, so long as the representation gap created by Senate Bill 1181 exists, at least some indigent parents who constitutionally require representation will not get it,” Bevan wrote.
Idaho State Public Defender Office spokesperson Patrick Orr said in a statement that the agency hasn’t been assigned any private termination cases since the court took up the case in October.
“Our view is the same now as it was last year. Our office provides indigent defense representation – and representation for parents in Child Protective Act cases where the state seeks to interfere with a parent-child relationship,” he said. But, he added, “we can’t provide legal representation in a private termination case.”
Idaho Supreme Court ruling parental rights termination 5-13-26
Idaho Capital Sun is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Idaho Capital Sun maintains editorial independence. Contact Editor Christina Lords for questions: info@idahocapitalsun.com.
