Relocating with a Child after Divorce in the State of Idaho


Question: Will I be awarded primary custody if I decide to move out of the state of Idaho?

Answer: Idaho Code § 32-717 states that "[i]n an action for divorce the court may, before and after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children." In Idaho, when a magistrate court makes a custody determination, the magistrate considers all factors relevant to the best interests of the children. Bartosz v. Jones, 146 Idaho 449, 457 (2008). Whether a parent is going to move out of the state is just one factor in making a custody determination in relation to the best interests of the children. There is no presumption in Idaho law against a parent that has decided to relocate, but it will be considered together with all other factors relevant to the best interest of the children.

A recent Idaho Supreme Court case demonstrates the circumstances in which a magistrate judge may determine that relocating with a parent is in the best interests of the minor children. In Peterson, a married couple with five children was getting a divorce. Peterson v. Peterson, 152 Idaho 318 (2012). The mother had been the primary caretaker for the children and the father had been the sole financial provider.

To determine which parent should have primary physical custody of the children, the parents participated in a custody evaluation where it was suggested that disrupting the lives of the children in a drastic manner would have a detrimental effect on the children. Despite the fact that the evaluator recommended that a change may be good for the children, the magistrate judge determined that it was in the best interests of the children to relocate with their mother from Rigby, Idaho to Salt Lake City, Utah.

In making this decision, the court cited the fact that the mother had family in Utah that the children knew well. The court also considered that the children had attended church in Utah and had acquaintances and cousins in Utah. The fact that the mother would be on welfare if she remained in Idaho, but would be employed by her brother if she relocated to Utah and would have flexible hours weighed heavily on the judge's decision in this case. Additionally, the mother would be able to live rent-free in Utah with her father and the children.

Despite the fact that a custody evaluation by a doctor had determined that both parents were fit to be the primary custodial parent and that the father would now have less time with the children, the magistrate court awarded the mother primary custody and the Idaho Supreme Court affirmed.