*1
proposi-
nor
substantiate the
Izatt
Rollo
the conclusion that defendant was bad likely
person, and therefore he was the
person committed the murder. The who
majority’s prejudicial statement inconsequential
effect of this evidence was criminal
because almost all evidence prejudicial
trial is to a defendant misses the
point. a conviction is Evidence obtain prejudicial.
and is intended to be That is a
given. relating But it should be evidence
to the crime committed.
As one delves into the record it becomes
apparent overly that the district court was allowing
kind in prosecutor to have virtually any
admitted evidence which it
presented. The defendant’s al- wife was testify
lowed to as to the defendant’s ob-
session with knives. Actual knives evidence,
allowed to be introduced into
withstanding that there was no contention weapons. such were murder These happened
were knives which the defendant absolutely
to own. These knives had evidence,
relevance to the case. Other on a
par photographs admit- victim
ted photographs into evidence included anatomically correct life-sized female graphically
doll which altered to dem- jury
onstrate the victim’s wounds. The jury
entered its deliberation in a room
reeking prejudice of the unfair from evi- prosecution
dence did not need to which the murdered,
show that the victim had been may
and the defendant have been the
perpetrator.
298 1984, August 3, for
On Patricia filed pleading divorce and she stated that marriage children were children of the both (even though Amber was born before the child). marriage and not Dan’s natural disposition complaint Prior of Patricia’s to divorce, for Patricia and consented to Dan girls, parents' guardianship Dan's of both agreeing guardianship both such girls. in the of the would be best interests 7, 1985, com- On June Patricia’s divorce plaint granted. The which was decree entered, however, provide did not for the care, custody support and of Amber Subsequent entry to Danielle. of the divorce decree both Patricia and Dan be- persons. came remarried to other Patricia they Rick married Porter resided Canyon County, Idaho. Dan married Rhonda Stockwell and lived in Port- land, Oregon. 18, 1985, July petitioned
On Patricia guardianship been terminate which had 21, parents. in Dan’s vested On October 1985, hearing custody of there was a on the girls. magistrate division entered Findings of its Fact and Conclusions Pro on Law Nunc Tunc March be effective of October Findings Conclusions the reso- included paternal guardianship in the lution that Further, grandparents be terminated. order entrusted care Givens, McDevitt, Bus- Pursley, Webb & granted rights girls to Patricia and of visi- er, Boise, defendant-appellant. for Paul J. both Danielle tation with and Amber Buser, argued. require judge Dan. The declined to Dan Williams, Kamiah, Roger plaintiff- L. stating “no pay support for Amber respondent. support pay- impose basis to such” Further, ments be found. the Find- could
HUNTLEY, Justice. ings ordered that reason- and Conclusions children be case of a able visitation with both This concerns parents. Finally, the granted to Dan’s after a divorce. Some time the summer (Patricia) parties respondent Am- all the of 1975 conceived admonished (Dan) parentage her. In appellant reveal Janu- ber. A few months later Amber’s Canyon ary Dan returned to Coun- began dating. April On 4th and Patricia Portland, Oregon pressed he ty from to Patricia. On June Amber was bom rights. In March and Patricia were visitation year 4th of the same Dan direction, girls At Dan’s Patricia and Rick fled Idaho with both married. Patricia’s leaving a placed on birth certifi- and went to Connecticut without name was Amber’s 13,1978 forwarding or with the cate March marked address with Dan as her father. Connecticut, daughter, girls’ school. Once Patricia birth Dan Patricia’s changed girls’ in the and Rick names Danielle. physi in Dan’s residential and placed spring schools. Connecticut custody pursuant to the Febru- girls in after care and Dan found the Connecticut cal magistrate. searching ary for several months. 1987 decision of the Thus, girls in Dan’s custo- both have been *3 1986, 1, July a second set of Conclu- On August in addition to dy since of 1986 in this doc- sions of Law was entered and prior to having custody in his shared magistrate ument the stated that Patricia’s (excluding, of separation Patricia and Dan’s conduct, leaving girls, in the state with the course, during the chil- period which pernicious parent/child rela- was so guardian- parents’ dren under Dan’s tionship Dan had established with appealing rulings provid- ship). Dan is substantial, Danielle that a material in Patricia’s ing placement of Amber permanent change of circumstances had oc- custody. changing curred the cus- which warranted tody of from Patricia to Dan. The Danielle paramount consideration The magistrate change cus- declined to Amber’s involving custody any dispute and care tody from Patricia to Dan but he did order child is the child’sbest interests. of a minor return Amber to Dan that Patricia custody disputes In be I.C. 32-717. order re- as enforcement of his visitation (i.e., “non-parent” a an individual tween garding an extended visit which was to parent) and who is neither nor natural have occurred from the 15th of June parent, apply pre Idaho courts a a natural through August. the 15th sumption that a natural should have August Connecticut collat custody opposed as to other lineal or enforcing magistrate’s entered an order parties. eral or interested This relatives brought July 1986 order and Dan both presumption operates preclude consider girls January to Idaho. On 13 and 14 back of the child un ation of the best interests hearing regarding held of 1987 the court nonparent less the demonstrates either that change girls’ custody of both from Patri- child, parent has the natural abandoned cia to Dan and it received relevant evidence parent is unfit or that the that the natural to the best interests of Amber and Dan- nonparent’s custody child has been ielle. The court found that the best inter- appreciable period of time. for an by chang- ests of Danielle would be served long standing rule in Idaho is that ing custody though to Dan even primary of the child is of the welfare separation would necessitate the first determining custody consideration girls in their lives. The court found implementation in children. In the separation that this would be necessitated rule, consistently has of this this Court authority place it had no Amber because applied presumption that a natural custody in Dan’s since Dan was neither his child parent should have adoptive parent natural nor of Amber. opposed to other lineal or collateral compel- parties. or interested The facts
The court stated that the most
relatives
bar, .through Ewing’s showing of natu-
ling
motivating
consideration
its decision
appellant
placed
parentage,
if
establish in the
was its belief that Danielle were
ral
Patricia,
prima
custody.
facie case for
The bur-
with
Dan would never be able to
respondent
shifts to the
again.
February
see her
den therefore
Ewing has forfeited
magistrate
placed
prove that Terrence
entered an order which
requires
rights.
proof
Such
a show-
Danielle in Dan’s
and Amber
clear,
convincing
ing
satisfactory, or
custody.
the 17th of Decem-
Patricia’s
On
patently
unfit
ber,
entered a
evidence that the
judge
the district court
child,
as in the
ruling
or has abandoned his
affirming
magistrate’s
decision
bar,
situation at
where an ad-
regarding custody
Despite the
factual
of Amber.
Amber,
party
of the child for
legal ruling regarding custody of
verse
(in
period
excess
appreciable
an
of time
she has remained in Dan’s
since
stay
years),
three
the best interests of the
August
pursuant
to a
custody being placed
giving
child dictate
custody.
order
Patricia
Danielle has
party
finding
if
it is in the
express
adverse
the facts show he is
out an
better fitted
the child
child’s
interests
to raise
than the
best
changed,
so
is to
the child to
parent.
reduce
the status of a chattel.
Children
chattels,
nor are
be awarded
party
Where an
has had
adverse
blameworthy
litigants.
the least
of two
period
appreciable
of a child for
cases
primary consideration in these
time,
years,'
in this
four
case over
should be what is
the best interests of
custody of the
will be left
with that
child,
considering
after
all of the
party if the best interests of the child so
factors involved.
finding
proper
dictate. Such
if the
*4
clearly
It is thus
under Idaho
established
party
adverse
is
to be
shown
better fitted
precedent,
in
that where a child has been
to raise the
parent.
child than the natural
custody
party
appreci-
the
of a third
for an
such,
reject
appellant’s argu-
As
we
(and
period
thereby developed
able
of time
only mandatory
a
showing
ment that
person),
custody
a bond
that
of the
patent
abandonment or
unfitness will
child
party
will be awarded
if the
parent’s
suffice to overcome a natural
best
the child
interests of
so dictate. In re
right.
425-26,
Ewing, 96 Idaho at
P.2d at
529
424, 425-27,
Ewing,
re
Idaho
529
96
circumstance,
In this
“a
1297-98.
neither
(1974).
1298
In McGregor
P.2d
mandatory showing of
abandonment nor
Phillips, 96
Idaho
P.2d
patent
necessary
unfitness” is
to overcome
(Bakes,
(1975)
J., dissenting), Justice Bakes
right.
parent’s
In re
cited
reaffirmed the
and
need for
Idaho at
JOHNSON, concurring question appropriate A more to ask specially. is, couple parent- future divorcing “What to, agree ing arrangements you can so I fully majority opinion. in the concur in- you can continue to be that each of only to elaborate on the mediation write volved, loving parents?” This version of required that is on remand. question consent guardianship vesting decree of creates a different a very girls focus and different parents. outcome. both in Dan’s First, question mutual, an- consenting parties were Dan and Patricia. swering requires cooperation. Asking it The willing parties, parents, agreed Dan’s custody?” “Who shall have creates a guardians, to act as so and did for some competitive likely produce and is focus time. fighting- response, an adversarial or but 14,1986, The same order of March asking couple agree cer- to create guardian- grandparents so relieved the parenting arrangements requires tain ship duties, placed Am- both Danielle and collaborative discussions and mutual mother, same ber their Patricia. The planning. order of both afforded visitation Second, question is future oriented. girls paternal grandparents, such pushes couples Mediation look more being putative but a characterization as to the future Amber, because can controlled not a who was child of Dan's nor changed. grandchild parents. When the mediator asks a As of Dan’s Justice future-oriented, question, couples Huntley out, Judge pointed mutual Drescher require provide did not Dan to through find it easier to the diffi- Patricia with work support living for Amber. being Justice cult task Huntley’s does not advise whether different houses. voluntarily payments help Dan made Erickson, Id., Legal S. “The Dimension support. If with Amber’s one were to as- Mediation,” at Divorce 108-09. did, sume he such would lend some My hope parties will support small result which the ma- *6 required into the with a enter mediation not, jority to attain. If he did strives such custody desire resolve the conflict over against would him. militate in a way this case that will be to the best Then, through I read as Justice Hunt- and, ultimately, interest of the children following ley’s opinion, 14, the March themselves. order, when Dan thereafter returned to Oregon pressed Idaho from and his BISTLINE, Justice, dissenting. order, rights under visitation that Patricia argument in When we heard oral Janu- Connecticut,1 her and husband moved ary my strong recollection is of a allegedly leaving where address general pivotal consensus that the issue in reached, taking could be and thereafter validity stay this case was the of the order measures at their remain- said be aimed by Judge entered Doolittle. In Justice ing unfound. stay barely Huntley’s order is July proceeding at where mentioned and then as historical an attorney Patricia Patricia’s then did and fact in connection with recitation hearing Drescher, after Judge appear, court, Drescher, Judge placed Am- trial witnesses, Dan and testimony from Judge custody, ber in Patricia’s and that changed from custody Danielle’s Patricia Doolittle, acting capacity appel- in the of an continued Dan. was Amber’s court, Judge late affirmed Drescher’s order ordered to return Patricia. Patricia was custody. so order placing Amber’s That Danielle to Dan. in February was entered of 1987. The touching prior order thereto Amber’s that, Amber, As to we are informed be- custody had entered on March pre- escapade had cause Connecticut That order 1986. relieved Dan’s enjoying from a court-sched- cluded Dan well), (and right Dan Amber Danielle as had earli- uled of visitation which pursuant given, apparently, which earlier Connecticut to an er been on, moving they sought Judge Drescher would comment Before to Connecticut and ter Amber, advice, he which counsel Patricia to take obtained was from expressed representing the Connecticut other than now them. That advice some wonder that of both nothing girls in the court’s court had ordered return effect prevented leaving La- decree them from Idaho. Idaho. terminated, ordering adoption guardianship may responsible court Am- Idaho, ber’s third presumably return to for the to him. The were not available of Dan’s Am- question, fulfillment lost visitation with presents a thornier alternative unclear, appear ber. This but does not Despite Dan’s counsel’s able however. dispositive to be a factor at time. juris- from other citations to authorities eloquent arguments sup- dictions and Then, see, as we there was a further thereof, port persuaded this Court is not hearing 14,1987, January held on 13 and permit that Idaho’s statutes and case law present counsel, which Patricia was step-parental custody a natural following Judge placed Drescher willing custody. is fit and to have of Amber Patricia and Dan, of Danielle in and afforded Patricia Idaho Code 32-717 vests the. § visitation with Danielle. An order to Idaho, judg- courts of before and after February that effect was entered on actions, jurisdiction ment in divorce over Judge 1987. In that same order Drescher custody, care and education of ‘the provided that such with Danielle visitation marriage’ may children of the seem posting surety was conditioned on in the necessary proper in the best interests $15,000 sum of to insure the return of of the children. Other statutes enacted Danielle to Dan. legislature employing Dan, marriage’ term ‘a child 32- appeal That order resulted §§ 32-1005, taking Judge relating the case before Doolittle. to the award girls physical temporary support pend- While both were in Dan’s custody, legal custody, ing and Danielle in his a divorce action and the award Patricia, at the end of May separation par- moved after the allowing Doolittle for an order ents, respectively. Additionally, visitation with 32-1006, I.C., Danielle. Because the visi- provides that § ‘[a] tation would be at Patricia’s residence in legitimate born before wedlock becomes Connecticut, Judge Doolittle stated that the subsequent marriage par- of its girls while there were to letters ents;’ receive gives 32-1007 the father *7 telephone calls from relatives. The legitimate and mother of a unmarried children were delivered to Patricia forth- equal minor child entitlement to the with so that and she could make it to custody, earnings child’s services and un- airport the day. Nothing the same in the parent less either be dead or unable to suggests slightest record any the that so, custody, take refuses to do or has problems developed because of this visit— family. his her abandoned or nor a following with like visit the summer 16-1504, By enacting 15-5-204 and § of 1988. legislature place- provided the has
Judge
custody
person
ment of
of a minor in
appeal
Judge
Doolittle took
a
of
parent by guardianship
custody
Drescher’s
not the child’s
or
order under advise-
adoption.
guardian may
appointed
In
A
affirming
Judge
ment.
be
Doolittle care-
parental rights
fully
only
have been ter-
specifically addressed therein
suspended by
Dan’s claim
minated or
circumstances
custody
of Amber:
prior
Adoption may
or
court order.
take
CUSTODY OF AMBER
place only by
parental
consent or when
rights have been terminated. Both stat-
sought custody
step-daugh-
Dan
of his
contemplate
suspension
utes
at least the
ter, Amber, under three alternative re-
parental rights
living parent
of
of a
be-
adoption, guardianship,
medial theories:
person may
granted
fore a third
be
cus-
custody
relationship
based on his
tody of a child.
sitting in
parentis
loco
as Amber’s de
psychological
mag-
The
legisla-
father.
Thus it becomes clear that the
facto
that,
correctly
istrate
pa-
protect
rights
par-
concluded
Pat’s
ture intends to
rights
rental
having
neither
termi-
been
ents to
of their children in the
being sought by
challenge
nated nor
rights by
Dan to be
face of a
to those
a
a cus-
contemplated
person.
further
the Vermont statute
third
This intent is
clari-
stepparent.
placement
fied
32-1008
enactment
I.C.
todial
with
§
gives grandparents
specifically
spent
had
child
rights
only
reasonable visitation
a
appreciable
no
natural
the custodian with
proper showing
grandparents
parent
cases submitted
contact. Other
have established a substantial relation-
fit a
factual
the defendant
similar
divorcing parents.
ship with the
child
pattern.
Supreme
long
Idaho
has
Court
Judge
obviously so wrote
Drescher
that,
between a
held
a
contest
reading
also readi-
Paquette,
after
which is
parent
non-parent, party
such a
23. The
ly
A.2d
found
146 Vt.
proceeding
prima
makes a
case
facie
Paquette
Vermont court in
observed that
entitling
merely
him to
show-
statute, 15
sets
V.S.A.
Vermont
§
parent
he
natural
ing that
is a
guidelines governing the
forth the
award
parent
pri-
After
establishes a
child.
proceeding
of child
in a divorce
case,
the burden shifts
ma facie
following language:
non-parent
prove
that the
chapter,
the court
an action under
custody by
forfeited
aban-
concerning
make
the cus-
shall
an order
donment, or
that he
unfit or unable to
marriage.
tody of
minor child
See,
properly care for the child.
Blank-
guided
The court shall
best
Brookshier,
enship
Idaho
child.
interest
(1966); and
cited
P.2d 800
cases
therein.
652(a),
Id.
499 A.2d
26. The Vermont
Stockwell,
here,
non-parent
Dan
proposition
faced with the
“That
court was
alleged
proved
nor
that Pat
neither
marriage’ is
‘child of the
new to
term
parental
Porter forfeited
plowed any
Vermont.”
available
properly
con-
Amber.
trial court
ground, and arrived at the conclusion that
exists
basis in
cluded
there
marriage”
of the
could include a
“child
for an
award Amber’s
stepfather
The case is inter-
step-father
to her
in the
absence
reading.
esting, and it
recommended
Of
parental
forfeiture
of her mother’s
note,
that court cited Idaho’s
case
rights.
proposition
recognized
of a
pre-
for the
Justice Drescher’s consideration
sumption that the best interest
thorough.
Al-
equally
same issue
by granting
will be served
though
deign
does
parent.
Although
majority opinion
is that Dan’s continued
will leave One
dy
girls
was
reason of
believing
Dan’s
both
its readers
that thereafter
(as
having been abandoned
Patricia
uninterrupted “for
of Amber was
stay
a court
time,”
Ewing), but occasioned
appreciable period
quick
an
order,
put
record,
violation of which would have
Patricia,
review of the
reveals that
light,
if not have
Patricia
an unfavorable
argument,
as of the time
January
of oral
subjected
contempt process.
12, 1989,
her to
Two
already
physical
had
that,
Judge
sthy
other than for
Doolittle’s
of both Amber and Danielle on two
order, Amber,
legal custody
whose
was
sixty days
different occasions of
duration.
Patricia, years ago
vested in
would have
Judge
cognizance
Doolittle took
of her
physical
been delivered to her mother’s
cus-
aforesaid visitation
with Danielle in
tody.
representing
is that counsel
Three
signing
stay
order—with the effect
Judge
Dan was not
able to convince
stay
order
to that extent
was
but,
order,
Doolittle to enter such a drastic
date,
languish-
modified. To
while the case
accomplish
Dan’s counsel was to
moreover
Court,
es in this
Patricia
still entitled to
affording
opportu-
that without
Patricia
sixty days
per year
visitation
with both
nity
opposition
to be heard in
to the mo-
girls
and has been the
custodian of
procedural
clear
due
tion—a
violation
February
since
Amber
is not
process and rules of the court.
known how three members of the Court
simply
ignore
can
extremely
choose to
What the
does not address is on
important
girls
spent
fact that the two
both
entered, and,
grounds
stay
what
sixty days with their
mother
the sum-
further,
proce-
there
a lack of
whether
mers of 1987 and 1988. Each time Danielle
inquiries
process.
dural due
These
allude
was returned to Dan. Without doubt the
Judge
stay
fact that
Doolittle’s
lower
courts had mind that such visita-
placing custody
Drescher order
appreciable period
tions “for an
of time”
ensued from an order
of Amber
Patricia
great
were in order
aas continuation of the
parte application. Whereas
rendered on ex
bond which exists between a natural
jurisdictions
moth-
if
hold fast to the
most not all
daughters.
might
er and her
premise
parte
One
sur-
of an
order
that issuance
ex
professing
temporary custody
mise that such vital factual
information is
to award
withheld
majority opinion
from the
the other
was not
because
one
given
hearing
otherwise it would be
is a denial of due
somewhat embar-
notice of
rassing
evaded,
process,2 majority
to intimate that Patricia’s involve-
avoid-
daughters
ment with her
par
ing,
validity
was on a
the issue of the
of the district
extremely contrarily poor
order,
relationships
stay
court’s
order in essence
*9
facially
Judge
said to exist in Ewing, which case
amounted to a nullification of the
appears
mainstay
majori-
placing
to be the
Drescher order
with Patri-
Amber
(In
ty’s
rationale.
Ewing
by
the contest for
cia and affirmed
Doolittle. What
a
majority
regard might
involved natural father who had
the
then does in that
by
practitioners
not seen his two children for
well-versed
be seen as
—nor
support payments
sent
apparently
unbelievable. In re
—which
point
very
given
hearing
2. A case in
is the
recent case of
N.W.2d
re
other
was not
notice of
or
Schmidt,
(Minn.
Marriage
opportunity
e.g.,
436
99
afforded
to be heard. See
Ol-
of
1989). The court en banc held that absent a
Priest,
(Colo.1977); Giddings
sen v.
P.2d 122
564
finding
danger,
that the effected child
a
(N.D.1975)
Giddings,
N.W.2d
228
919
parte
awarding temporary
court’s ex
order
cus-
case).
(custody modification
tody
to one
must be set aside when the
(1974),
the trial court’s
by majority
P.2d
is
this Court sustained
said
proposition
on the
par-
finding
to stand for the
that one
of a
abandonment
conclusive
ty’s
period
appreciable
flimsy
basis of that
evidence.3
(with being of no
time
moment whether
only dis-
majority opinion’s
Whereas
legal,
legal
physical,
physical),
is
applicable
was a
statutory
law
cussion
being
in a
left in
should result
child
reference to
definition
abandonment
party,
against
a
of that
even
Protec-
found in
which is
Child
“An
parent.
appreciable
natural
time” is
Act,
proceed-
such
tive
and this was not
a
gives
wholly open-ended,
guid-
left
no
ánd
immediately
ing,
Shepard proceeded
Justice
litigants.
ance
to trial courts or
whatever
statutory
applicable
law which
voluntarily
Here the mother never
left cus-
controversies,
readily evi-
as is
Never,
tody
never,
in Dan.
nev-
Amber
opening para-
by turning
denced
er.
opinion.
graphs of his
majority’s
Ewing
reliance on
The
compelled
only by
dissent
I am .
not
and,
misplaced,
Ewing
any-
grossly
in the in-
reason of
result obtained
thing
opinion.
unanimous
Instead of
but a
by
stant case but also
reason of certain
it,
simply citing
it had
better
language
majority
contained
prior
one
majority
reviewed
some
in the
my opinion
which in
new
opinion,
injects
being
Ewing the natural
misused.
prior
law
criteria into an area
mother
of the two minor chil-
had
confusing,
case
best been
to this
has at
a
divorce
dren
virtue of default
decree.
complex, contradictory from decision to
Gordon,
Mrs.
She remarried and became
guide to
decision and which
furnishes
year
marriage
dying
thereafter
after
courts, lawyers
people
or the
Ewing
The two
children
to Gordon.
state.
ages
Ewing
paid
and 3.
had
then but
for cus-
present
Cases which
demands
support
of $100
default-ordered
difficult
tody of children are
best
month,
per
on that
basis
trial
presented in the context of a di-
Ewing
conclusively
found that
had
aban-
de-
parties
action with each of the
vorce
children, notwithstanding that
doned the
par-
manding custody possessing natural
living
while the mother was
with Gordon
such
de-
ent status.
custodial
When
him,
ap-
and then married to
Gordon was
party
one
as natu-
mands
between
parently supporting
family; Ewing did
non-parent
other a
parent and the
ral
situation,
than
not interfere with that
other
demon-
suggest
the decisions are
sending
presents
children
once at
strably result oriented.
reported opinion,
Christmas time.
the statutes
One would believe
significance,
great
does not contend that
guidance if not
give
would
considerable
Gordon,
children, had
no relation to the
in this field.
I.C.
direction
absolute
children,
adopted
or that
overtures
provides:
32-1007
adoption
toward an
were made. The
legit-
father
mother of
after
death was
action
mother’s
equal-
minor child are
brought
imate unmarried
gain
of his
custody,
ly
to its
services
Mr. Gordon. Three members
entitled
children from
Shepard
mother died in Decem-
surprising
us that
It is not
that Justice
wrote
forms
dissent,
just
after
convincing
surprising
seven months
that Justice
ber of
giving
which was
nor
conclusion,
At
joined
to a son fathered
Gordon.
it. The
birth
McFadden
living
expansions
Gor-
had been
her death
mother
one
the most unsubstantiated
months,
approximately thirty
system,
of which
reporter
was that
don
be found in the Idaho
being
nineteen months. The
been married
must not be
into
tom
children
forced
*10
years
Ewing
of
people
they
the
children was six
away
whom
have
oldest of
the
with
from
died,
428,
age
other was
grown
the mother
the
up.
Idaho
307
of
94
Yearsley Yearsley,
critical review
v.
earnings.
If
the
or moth-
either
father
(1972), Yearsley
Idaho
Given such a bizarre appears ignored of haps Yearsley to be that the sion in have understood was, least, say the unusual rights by this court created statute and also those herein. in of cases discussed rights view earlier for of laid criteria determination majority again paid the The decision of excepting in previous down the cases statute, lip the 32-1007 service to I.C. I only suggest that of that Altmiller. lip earlier paid and also service to the indulgence such ‘child of phrases in as stating: cases years,’ in innocent ‘attachments formed general childhood,’ is that scenes, friendly rule Idaho and ‘familiar situations, parents the normal kindly faces and voices’ do little but ob- custody the child are entitled of problem right of a a natu- fuscate of that affirmatively unless it is shown if he parent to the of his child ral child or has abandoned the it and is has not abandoned otherwise prospect he that is unsuitable. proper person. The of fit and sitting in
this or
other court
omnis-
judgment
frightening
cient
is
However,
is
not absolute
taking
child from
involves
as the
qualified.
is
an action such
proper
otherwise fit and
have
bar,
general
at
rule will be
one
awarding
it to another on the basis
affirmatively
unless it
followed
provide
that the other can better
for
shown that both
are unfit
child. To further confound the confusion
or that
are unable
custody,
grand-
let me add that Altmiller the
properly
maintain the child
edu-
mother of the child was awarded
provide
proper training and
for
Idaho
(Emphasis supplied)
on the basis that she as a woman
cation.
fa-
naturally
at
310
Judge Drescher
case,
stating
McGregor
boldly
that both
which determined that the
paying
not
erred in
her child
and
Doolittle
mother had not abandoned
of
children.
leaving
paternal grand-
heed to the “best interests”
the child with the
780,
Having
the handi-
injustice
at
537
done that
to
(non-parent).
mother
96 Idaho
court,
conclu-
short,
jurists, the
in work of
dedicated
P.2d at
the trial
60.
to
necessary
it
further
Court,
acknowledged
sion is drawn that
this
both
the ex-
turn
prolong
litigation
intervention
this
with the
majority opinion,
Ewing
istence of the
but
able to
who will somehow be
opinion in
a mediator
not
it. This Court’s
did
follow
or, perhaps, to
bring
parties together
Ewing only
prefato-
for
McGregor utilized
where
omnisciently advise the courts below
setting
long standing
out the
ry remarks
lie.
interests of the children
the best
prefato-
had
Ewing
rule which in
also been
out, and
credited to the Years-
rily set
help
compare the lack of
cannot
but
One
case,6
ley
in turn had been taken
which
alacrity
against the
progress of this case
Brookshier,7
Blankenship
ad
from
v.
McGregor case sailed
infi-
which the
painstak-
nitum. All
those cases were
through
system.
peti-
There
initial
Shepard in his
ingly reviewed
Justice
natural mother was filed on
tion of the
A, attached).
Ewing opinion (Appendix
15, 1974;
non-par-
April
the answer
point being
is that
McGre-
The
made
when
later;
filed two
trial was
ent was
weeks
Ewing, the
on the heels of
gor followed
awarding
judgment
and the
entered
had
espoused by
position
returned
Court
15,
August
to
mother on
1974.
so,
doing
failed to
Shepard but,
Justice
filed,
non-parent’s appeal
timely
The
—
distinguish
from Ew-
McGregor
or
overrule
Shortly
oral ar-
after
as were
briefs.
re-
prophetic
in turn made the
ing. This
on
gument
opinion
Court’s
issued
June
this
Shepard
come
marks
Justice
controversy
The
would have been
1975.
true,
Yearsley:
when he said
over, other
for
Bakes’ dissent
than
Justice
ap-
in Yearsley
decision
peti-
file a
non-parents
invited the
to
rights
ignored
created
pears
have
rehearing. Parroting that which
tion for
written,
also those criteria
deter-
non-parent
statute and
had
Bakes
Justice
previ-
down in the
mination of
laid
had
paid
this Court
atten-
asserted that
excepting only that of
ous cases
Altmil-
This
“child’s best interests.”
tion
indulgence
phras-
suggest
I
that
Bakes,
petition,
ler.
so
Justice
said
said
years,’ ‘at-
es such as ‘child of innocent
notwithstanding that
this Court’s
childhood,’
formed in
and ‘fa-
specifi-
tachments
upheld the trial court’s conclusion
scenes,
kindly
friendly faces and
miliar
utilizing
language. 96
cally
“best interest”
prob-
little
voices’ do
but obfuscate
at
537 P.2d
61.
Idaho
of a natural
lem a
disagreed that
trial
Justice Bakes
his
if he has not aban-
so,
he
so
or at least that
did
judge
done
proper
doned and is otherwise fit
it
appellate
on his
correctly. This was based
person.
prospect
non-parental
that “the
fact-finding view
judg-
sitting in omniscient
other court
evidence
party has introduced sufficient
”
it involves
frightening
ment
he rec-
presumption which
to rebut the
taking
otherwise
a child from
“presumption
ognized
established
as the
proper
have
fit
parent should have custo-
that
on
basis
awarding
another
opposed to other relatives
dy of the child as
provide
can better
other
parties.”
stranger to the child as the petitioner is justify majority The record does not case,
in this
...
saying
judges
pre-
who
782, 537
(Bakes, J.,
96 Idaho at
P.2d at 62
dis
erred in
sided over this case that both
senting) (emphasis supplied.) One need not
failing to consider the best interests of the
pause
quarrel
opening
with those
words.
girls. This case
fall into
two Stockwell
will
them, however,
To
is to McGregor
put
read
Judge Shepard
group
of cases which
aside.
In Amber’s case her mother did not
Ewing
review,
namely
identified
one,
anyone.
prior
turn Amber over to
No
reached a decision as to
where
Court
today,
has been so elastic in conscience
go, and did so.
way
it wanted to
as to intimate that Amber’s mother has
Here it is
that three members
all too obvious
abandoned her.
It is not
an issue.
even
place
at some time and some
the Court
Ewing
majority’s
citation to
does not
to use this case as a
unknown decided
any
opinion.
add
substance to its
stepping
bring court-ordered medi-
stone to
naught but a sham. McGregor is thrown
Frankly,
ation into
controversies.
solely
majority
so
out
is able to
disappointed
dismayed
at such
cases,
am
one,
rather
than
for the
cite two
so,
doing
render a disserv-
tactics.
“clearly
estab
majority
postulate
as
litigants;
they make
more
ice to the
even
precedent,"
lished Idaho
that “Dan’s es
precedential case
unstable the
law which
past
sentially sole
for the
two and
giving
instead
sure-footed and
should
years”
“longstanding
one-half
and his
sub
guidance to the trial bench
parental relationship
even-handed
stantial custodial and
Drescher
obligated the
and bar.8 The
... with Amber”
lower
decisions
Judge Doolittle should be affirmed.
courts “under settled Idaho law to consider
Yearsley.
Shepard,
did not sit in
The third
8. Justice
in addition to his
dis-
Justice Bakes
sent,
attempt
Judge May-
also made a similar
to steer
of the
was District
member
nard,
Yearsley
Court in the
There, too,
direction in the
case.
sitting pro tem.
joined by
he was
Justice McFadden.
“Ex-
unnecessary
An
lature
the district courts with
affirmance would make
vested
stay order,
original
all
validity
jurisdiction
discuss the
clusive
actions
stated,
necessary
proceedings
which as earlier
addressed
all
to ... make
Obviously a
by majority.
temporary
all
Rev.
orders for the
of children.”
notice, it should Stat.1887,
order obtained without
Specifically
legisla-
and rescinded or
have been ruled invalid
provided
ture
actions
divorce
grant
questioning
Instead of
aside,
set
“give
such direction
district
would
order,
parte
of such an ex
Justice Johnson
custody,
for the
care
education
uncommonly
out of the
showed
blue
marriage may
seem nec-
children of
mediation,
subject
keen interest in
which essary
proper,
may at
time
*15
knowledge
up
has
before come
my
to
never
modify
or
the same.” Rev.Stat.
vacate
by the
Mr. Buser
for discussion
Court.
Today,
years
over a hundred
later
Dan,
just
appellánt, had
representing
the
to
the district courts continue
have
argu-
the
to make his final
occupied
podium
jurisdiction
over child
is-
exclusive
following
place:
took
ment when the
37-715,
slight
sues.
One
I.C.
32-717.
§§
Buser,
Mr.
before
JUSTICE JOHNSON:
change is that district courts now have
begin,
monkey
throw
going
I’m
to
you
magistrate
courts,
divisions of district
and
you
question
and
here
ask
wrench
ordinarily
judges of
divisions are
the
such
wall,
dialogue
on the
off the
based
makers,
being
the initial decision
with there
just
occurred between the Chief Mr.
right
judge,
to
appeal
of first
a district
this
you
Do
think
Court has
Williams.
at a
may
who
decide to rehear the issue
disposition
authority
its
of the case to
novo,
appellate
to sit in an
trial de
or
require mediation?
proceedings
Further
capacity.
review
pause]
second
[Fifteen
appeal
Supreme
to this
Court
below
Court to instruct
MR. BUSER: Of this
issues,
assign
the
may
which
decide the
the trial court?
Appeals.
case to the Court
Yes.
JUSTICE JOHNSON:
bench,
sum,
litigants,
the
the trial
the
Yes, I
MR. BUSER:
do.
bar,
citizenry
and the
of Idaho behold
trial
right.
All
JOHNSON:
JUSTICE
judi-
known
day
commonly
what is
as
this
proce-
activism,
questiona-
In order to invoke the mediation
in one of its most
cial
necessary
reverse not one
dure it was
to
“mediation” no-
aspects. The word
ble
Judge
judges, namely
Drescher
but two
in Title
of the Idaho
appears
where
issue
who had
resolve
Relations,
Code,
vari-
captioned Domestic
Judge
who
place, and
turn
Doolittle
first
are devoted to child
ous sections which
Judge
affirmed
reviewed the record and
very well
custody.
day
One
“mediation”
in turn
Had this Court
affirmed
Drescher.
one,
may
in the Idaho Code. For
be found
decisions,
litigation
their
would have
against mediation. But
I hold no belief
conclu-
proper
come to a
and well-deserved
come
will
recognize that mediation
do
sion.
legislative
about,
does,
reason of
if
enactment,
judicial tinker-
reason of
in,
But,
monkey wrench was thrown
powers.
usurpation
legislative
par-
ing and
at these
there is also thrown
and now
day
Patricia,
goes way too far
teenage The Court
ties,
Dan and
belongs
leg-
occupying a field which
well,
being
prospect
daughters as
did so in as-
previously
That it
islature.
guinea pigs
experience
first
have
(as
right make substantive
suming its
It is
into their lives.
of mediation thrust
does
rules
evidence
against procedural)
anything
wrong as
doubt as
without
wrongs sim-
justification. Two
not create
has ever done.
this Court
usurping
right.
do
litigated
ply
not make
thoroughly
controversy has been
Court, unlike the
prerogative the
legis-
legislative
which the
parties in the forum
grass-roots connections
legislature, has no
of such
for
resolution
created
lature
legislature,
Idaho.
people
judicial system. with
namely the state
disputes,
contrast,
and sena-
representatives
legis- by
the territorial
statehood
Even before
not,
parties
state,
and both
from all
and can and defense counsel
tors
over the
point
truly represent
argued
its constituents.
does
briefed and
before
Otto,
decision.
reached its
State
Court
very
may
people
well
be that
2,
parent,
party
is
the burden
seeking
prove
there
such
abandon-
had been
abandonment of
parent’s
or
child
ment
by its father and stated:
forfeiture of
parent
or that
is
Non-support and
not
abandonment are
unfit
properly
the child.
unable to
care
synonymous. Non-support, in
it-
and of
145,
(Emphasis supplied) 83 Idaho at
self, does not constitute abandonment.
P.2d at 1041.
finding
court also affirmed
Spaulding
In 1965 in
v. Children’s
trial court that the father was
fit and
Finding
Society, 89 Idaho
Home
and Aid
proper person
to have
of his child
52,
citing
402 P.2d
the court
I.C.
stating:
15-1805,
32-1007 and I.C.
returned
§
Although
undisputed
it is
re-
stating
child to its natural
“[i]f
spondent
per-
is
fit
morally
proper
or her
competent
to transact his
care, custody
son to have the
and control
business,
not
unsuita-
own
and is
otherwise
daughter, Nancy,
dis-
of his minor
it is
ble,
of the child
not to be
puted whether or not he has a suitable
given
though
to another even
such other
proper place
care for and educate
may
person.’’
be a more suitable
her. 76
and control of the where- knowledge the father had applicable proceedings and the law was family and therefore abouts state. nature is well settled this support.) the child pay unable to 144- 83 Idaho at Citing I.C. 32-1007. decided the In 1966 a unanimous court at 1041. 358 P.2d Brookshier, 91 Ida Blankenship case v. subject of that
ho
After prima established a fa- up problems court to face to the difficult case, (that cie parent) he was the natural particular which confront it in this field of appellants prove burden shifted to lay guidance law and criteria down for the respondent parental his courts, lawyers of the trial and the forfeited abandonment, or that he was people of this state. The case at bar is properly unable to care impossibility demonstrative of the of recon- unfit child.
ciling previous decisions the court whether the statutes of the state have controlling Respondent’s influence or whether are to continuing interest his merely ignored. son’s cited and thereafter welfare demonstrates that at no he time did intend to abandon or desert 424, 429-432, In re appellant’s his child to custody. (1974). P.2d 1301-1304 stipulated grandparents that the proper competent were fit and people to the child should the grant right. them that On the other
hand, the father had been in minor involved proceedings, seasonally
criminal
awas
em-
ployed logger, drawing three months unem-
The court is concerned the fitness Company, surety, al Insurance the natural at the time of the Defendants-Respondents.
hearing as it relates to the welfare of the No. 17358. is, If child. at the time the Supreme arises, Court of Idaho. question person a suitable to have child, custody of the the court will not June deny custody merely because at some past parent's time in the conduct
indicated a lack of integrity responsi-
bility.
In 1971 the court in the case of Duncan Davis, 485 P.2d
effect, reclaimed a child foster and from
prospective adoptive parents and awarded
the child to the natural mother. Therein
the court affirmed the decision of the trial finding mother relinquished adoption
of the child had it for consequences
she was not aware of the
flowing from that action. the context case, Davis, per- supra, Duncan v. interesting
haps only in that nowhere
therein did that court discuss