Idaho De Facto Custodians and Temporary Caregivers

Part of my Idaho Family Law Overview.

By Ronald W. Brilliant, Attorney at Law · Licensed in Idaho, Nevada & California · Last reviewed: September 2026 against the Idaho Code as posted by the Idaho Legislature (July 1, 2026)

In This TopicIdaho Family LawTopic 8 of 9: De Facto Custodians

Sometimes a relative ends up raising a child while the parents are absent. Idaho’s De Facto Custodian Act (Idaho Code § 32-1701) gives certain relatives who have cared for and supported a child a way to ask a court for legal and physical custody when that is in the child’s best interests (§ 32-1702(2)). The Act also gives constitutionally required deference to the decisions of fit parents in custody actions brought by third parties (§ 32-1702(1)).

A separate chapter lets a parent or legal guardian temporarily hand parental powers to a “temporary caregiver” through a power of attorney (Idaho Code § 32-1801(1)). This page explains both options as the Idaho Code describes them.

Who Is a De Facto Custodian?

A “de facto custodian” is an individual who is related to the child within the third degree of consanguinity (blood relationship) (Idaho Code § 32-1703(1)(a)). The individual, alone or with a copetitioner, must have been the child’s primary caretaker and primary financial supporter (§ 32-1703(1)(b)). The child must also have lived with the individual without a parent present, and with a lack of demonstrated consistent participation by a parent, for the time shown below (§ 32-1703(1)(b)).

Child’s age	Required time living with the relative
Under three (3) years old	Six (6) months or more (§ 32-1703(1)(b)(i))
Three (3) years old or older	One (1) year or more (§ 32-1703(1)(b)(ii))

“Lack of demonstrated consistent participation” means a parent’s refusal or failure to comply with the duties of the parent-child relationship (Idaho Code § 32-1703(1)(c)). The court may consider the parent’s involvement in providing necessary food, clothing, shelter, health care, and education, and in creating a nurturing and consistent relationship for the child’s physical, mental, or emotional health and development (§ 32-1703(1)(c)).

Other Rules on Qualifying

• The court must also consider whether the child currently lives with the petitioner or intervenor and, if not, how long it has been since the child did (Idaho Code § 32-1703(2)).
• Time after a petition is filed does not count toward the required period (§ 32-1703(3)).
• A person is not a de facto custodian if the child lived with the person because the child was placed there by a court order or voluntary placement agreement under Title 16 (§ 32-1703(4)(a)).
• A person is not a de facto custodian if the child lived with the person because the person is or was cohabiting with, or is or was married to, a parent of the child (§ 32-1703(4)(b)).

Starting a De Facto Custodian Case

A child custody proceeding by a de facto custodian may be initiated in any Idaho court with jurisdiction to determine child custody matters, in one of two ways (Idaho Code § 32-1704(1)). The individual may file a petition asking to be found a de facto custodian and seeking custody, or may file a motion for permissive intervention in a pending custody case under rule 24 of the Idaho Rules of Civil Procedure (§ 32-1704(1)(a)-(b)).

The petition or motion must be verified by the petitioner or intervenor (Idaho Code § 32-1704(3)). It must state, among other things (§ 32-1704(2)):

• The names and addresses of the petitioner or intervenor, and the names of the mother and father or guardians, including other names used (§ 32-1704(2)(a)-(b));
• The name and date of birth of each child, and the petitioner’s relationship to each child (§ 32-1704(2)(c)-(d));
• The basis for jurisdiction (§ 32-1704(2)(e));
• Each child’s current legal and physical custodial status, any pending custody proceeding (including a protection order proceeding under § 39-6304), and prior custody orders, if known (§ 32-1704(2)(f));
• Whether either parent is in the armed services, if known (§ 32-1704(2)(g));
• How long each child has lived with the petitioner, the petitioner’s caregiving role, and the financial support the petitioner has provided (§ 32-1704(2)(h)-(i));
• Whether physical or legal custody should be granted to or shared with the respondents (§ 32-1704(2)(j)); and
• Why it is in the child’s best interests for the petitioner to have custody (§ 32-1704(2)(k)).

Who Must Get Notice

Written notice of the hearing must go to the child’s parents as defined in § 16-2002(11) and (12), to the child’s guardian or legal custodian if any, and to the child’s tribe under federal law if the child is an Indian child under the Indian Child Welfare Act (Idaho Code § 32-1704(4)).

Notice, with a copy of the petition, must also go to the Idaho Department of Health and Welfare if the petitioner has reason to believe that either parent receives public assistance, the petitioner receives public assistance on behalf of the child, or either parent receives child support enforcement services from the department, or applies for such assistance or services after the petition is filed (Idaho Code § 32-1704(5)).

What the Relative Must Prove

The case has two steps. First, the parties must stipulate (agree), or the court must find by clear and convincing evidence, that the petitioner or intervenor meets the de facto custodian definition (Idaho Code § 32-1704(6)). Only then does the court consider whether custody with that person is in the child’s best interests (§ 32-1704(6)).

Second, the de facto custodian must prove by a preponderance of the evidence that custody with him or her is in the child’s best interests (Idaho Code § 32-1704(7)). The court applies the best-interest standards in § 32-717(1), which are discussed on the Idaho child custody page (§ 32-1704(7)). The court may also consider (§ 32-1704(8)):

• How the child came to remain in the relative’s care, including whether the child was placed there so the parent could seek work or attend school (§ 32-1704(8)(a)); and
• Whether the child currently lives with the relative and, if not, how long it has been since the relative last functioned as de facto custodian (§ 32-1704(8)(b)).

Custody Orders for a De Facto Custodian

A court may grant a de facto custodian sole or joint legal and/or physical custody, as defined in § 32-717B, in the same manner as it would grant custody to a parent (Idaho Code § 32-1705(1)). The order stays under the court’s continuing jurisdiction and can be modified in the same way as a parental custody order under § 32-717 (§ 32-1705(2)).

A de facto custodian with sole or joint legal custody has access to the child’s records to the same extent a parent with legal custody would (Idaho Code § 32-1705(3)).

Ending a De Facto Custodianship

Any party to the case may move to terminate the custody order, and the de facto custodian may ask permission to resign (Idaho Code § 32-1705(4)). A party seeking termination must show by a preponderance of the evidence that ending the relationship is in the child’s best interests (§ 32-1705(4)(a)).

The motion may, but need not, propose who should have custody going forward (Idaho Code § 32-1705(4)(b)). After notice and a hearing, the court may terminate the de facto custodian’s custody and make other orders in the child’s best interests (§ 32-1705(4)(c)).

Temporary Caregivers by Power of Attorney

A parent or legal guardian may use a properly executed power of attorney to temporarily delegate to a named “temporary caregiver” any traditional parental rights and responsibilities about the child’s care and custody (Idaho Code § 32-1801(1)). Three powers cannot be delegated: consent for the child to marry, consent for an abortion, and termination of parental rights (§ 32-1801(1)(a)-(c)).

Rule	What the Idaho Code says
Maximum length	Up to six (6) months (§ 32-1801(4))
Revocation	The parent or legal custodian may revoke or withdraw the power of attorney at any time (§ 32-1802(2))
Return of the child	No later than forty-eight (48) hours after termination, withdrawal, or revocation (§ 32-1802(3))
Payment	Only reimbursement for actual expenses of caring for the child (§ 32-1803)

What a Temporary Delegation Does Not Do

• It does not change rights, obligations, or authority set by an existing court order (Idaho Code § 32-1802(1)(a)).
• It does not take away the parent’s or legal custodian’s rights, obligations, or authority about custody, visitation, or support (§ 32-1802(1)(b)).
• It does not constitute child abuse, neglect, or placement in foster care (§ 32-1802(1)(c)).
• A properly appointed temporary caregiver is not subject to foster care or child care facility licensing laws, and the appointment is not an out-of-home child placement (§ 32-1801(2)).
• The parties are not subject to foster care or community care requirements, monitoring, or regulation solely because of the power of attorney (§ 32-1801(3)).

Chapter 18 does not affect a delegation of powers made under § 15-5-104 (a reference that changes to § 15-5-124 on January 1, 2027) (Idaho Code § 32-1806(1)). See the Idaho guardianship of minors overview for that law. Chapter 18 also does not invalidate the Child Protective Act or change its burden of proof (§ 32-1806(2)).

Temporary Care Assistance Programs

A “temporary care assistance program” is run by an organization that helps a parent or guardian recruit or identify an appropriate and safe temporary caregiver (Idaho Code § 32-1804(1)). These programs must comply with nationally recognized standards (§ 32-1804(1)). During a child protection investigation that does not result in an out-of-home placement due to abuse, the investigator is authorized and encouraged to give the parent or guardian information about these programs (§ 32-1804(2)).

• Before someone becomes a temporary caregiver in a program, the Department of Health and Welfare must check state and national sex offender registries and conduct a fingerprint-based criminal history and background check, done the same way as for foster parents, with no fee charged (Idaho Code § 32-1805(1)).
• The program must inspect the temporary caregiver’s residence annually (§ 32-1805(2)).
• The program must tell parents and guardians that any delegation is made to the temporary caregiver, not to the program itself (§ 32-1805(3)).

For the general rights of parents, see parent and child law in Idaho.

How I Can Help

I help relatives evaluate whether they may qualify as de facto custodians, prepare the verified petition or motion to intervene, and present their case in court. I also help parents and relatives understand how a temporary caregiver power of attorney works under Idaho law. Request a consultation to discuss your situation.

This page provides general information about Idaho family law, based on the Idaho Code, and is not legal advice. Court rules (including the Idaho Child Support Guidelines), regulations, and case law also affect family law matters. Every situation is different; consult an attorney about yours. Reading this page does not create an attorney-client relationship.