Mar 3 2017

Importance of Understanding the New Idaho Rules of Family Law Procedure

All court proceedings are normally governed by a set of rules.  For example, there are Rules of Civil Procedure, Rules of Criminal procedure etc.  Prior to January 1, 2013, there were no separate rules governing family law procedure and such matters were generally governed by the rules of civil procedure.  However, given that the Idaho Rules of Family Law Procedure (IRFLP) are now effective statewide, it is extremely important for anyone handling family law cases to thoroughly understand these rules and how these rules work.

The Idaho Rules of Family Law Procedure (IRFLP) first started in the 4th Judicial District of Idaho as a pilot project, effective January 1, 2013. The IRFLP have been effective statewide since July 1, 2015 and are applicable in all cases involving divorce, legal separation, child support, child custody, paternity, all proceedings pursuant to the Domestic Violence Crime Prevention Act, all actions pursuant to the De Facto Custodian Act, and all proceedings, judgments or decrees related to the establishment, modification, or enforcement of orders in such action, except contempt.

Here are some noteworthy differences between the practices in a family law court before and after the adoption of the new rules:

Under the new Rule 401, the parties must make mandatory disclosures of specific information within 35 days after a responsive pleading is filed.  These mandatory disclosures must be made even if there are no requests for disclosure.  However, parties may stipulate to an extension of the deadline (stipulation is where both parties agree), or one party may petition the court by filing a motion for an extension of time to comply with the Rule 401.

The new Rule 504 anticipates the court deciding temporary orders based exclusively on affidavits rather than having lengthy hearings with testimony by the parties and witnesses.  This reliance on affidavits alone makes it extremely important to prepare detailed affidavits containing relevant information supporting the motion for temporary orders.  However, at the time of the hearing on the motion for temporary orders, the judge may decide to set a separate evidentiary hearing so that the parties are allowed to present testimony and call witnesses at an evidentiary hearing.  This is often the case where the issues are complex and the judge may have additional concerns for the health or safety of the children.

The new Rule 102.B, is designed to ‘simplify’ the formal and very technical rules of evidence that ordinarily apply in court proceedings.  However, the rule allows either party to request a strict compliance with the Idaho Rules of Evidence within 30 days after a responsive pleading is filed or within 42 days from the filing of the motion or petition in cases where no responsive pleading is filed, or such date as is established by the judge.  Experienced attorneys frequently request strict compliance with the Idaho Rules of Evidence making it much more difficult for people representing themselves to effectively present evidence in court given the technical nature of the application of the formal Idaho Rules of Evidence.

Idaho Rules of Family Law Procedure are often misunderstood by the pro se litigants (people representing themselves without an attorney). Many people do not know that the Rules of Family Procedure even exist or where to search for these rules (See link to Idaho Rules of Family Law Procedure).  People representing themselves without an attorney will be held by a judge to the same standard of expertise as attorneys and are frequently confounded by these rules.

(Idaho Rules of Family Law Procedure)

Sep 13 2013

My spouse took my children! What can I do now?

missing child

So often our law firm gets panicked phone calls from clients telling us that their spouse took the children and want to know what can be done. It is an unfortunate reality of many relationships ending in divorce that the children become the victims of the breakup. Some parents in Idaho will resort to taking the children in hopes of getting, what they perceive, is an advantageous legal position before filing for a divorce, planning to later argue in court that it would be in the best interest of the children to let them remain where they now reside in the name of promoting stability in the lives of the children. Consequently, it is important to act quickly if the other parent takes your children.

In cases like this we advise our clients to file motions for a Temporary Restraining Order and a Preliminary Injunction prohibiting the other parent from exercising custody over the children. Temporary Restraining Orders can be obtained very quickly and without a hearing or notice to the other parent. However, before a judge will issue a Temporary Restraining Order there must be a showing of irreparable harm to the children if the other parent continues to exercise custody. This usually involves showing evidence of abuse, neglect or serious disruption in the lives of children in the event the other parent continues to exercise custody.

In Idaho, Temporary Custody Orders are often the best way to avoid a lot of needless and harmful drama. If the parents cannot come to a custody agreement before the divorce is finalized, and it cannot be shown that irreparable harm will result, the usual recourse is to file a motion for a Temporary Custody Order. The Temporary Custody Order will issue after a hearing where both parties will be able to argue their positions.  The Temporary Custody Order will provide the custody arrangements in the interim period before the divorce is finalized.

A parent who takes a child and withholds the child from a parent who has a legal custody of the child, risks being charged with Custodial Interference (known as Parental Kidnapping in some jurisdictions), under Idaho Code 18-4506. If the parent takes the child out of the State of Idaho, or otherwise harms the child, the parent could be charged with a felony. If the parent remains in the State of Idaho and returns the child unharmed prior to being arrested, then the parent will be charged with a misdemeanor. It is of course a defense to Custodial Interference that the parent was protecting the child.

Aug 30 2013

Discovery – What It Is and Why It Matters


Discovery is essentially an information-gathering tool in a Divorce Case.  Discovery is how you investigate a divorce case.  Every divorce case has things the parties disagree on and things they agree on. The goal of the discovery process is to narrow the number of the contested issues and discover certain relevant information pertinent to those issues.  In other words, you are trying to find out exactly what everyone is fighting about, and get the evidence that will support your side of the argument.

In a divorce case, one of the most powerful things you can do is discover hidden assets.  However, the rules governing the discovery process are quite technical and difficult to effectively navigate without specialized training. There are several important information gathering tools that an experienced attorney may use in a divorce case:


Interrogatories. Interrogatories are a series of questions served on the opposing party that have to be answered under oath.  Interrogatories must be fully answered in writing unless there are legal grounds to make an objection.

Requests for Admission. Requests for admission are served onto the opposing party requiring them to admit or deny a list of pertinent facts related to the case.

Requests for Production. Requests for production are served as a list of individual requests for documents and other physical evidence.  Generally, the requests include things such as banking statements, tax information, and other documents that may benefit a client’s case.

Depositions. Depositions are an opportunity to obtain sworn and recorded statements from parties and witnesses.  Information obtained by depositions often points where to look for additional hidden information.  Sworn testimony can also be used to prove the case in court or impeach testifying witnesses.

Subpoenas. Subpoenas are orders sent by attorneys to obtain information from those who are not a party to the divorce case.  For example you can subpoena bank records, off shore accounts, and even medical records.  The third party must either comply with the subpoena, or file a motion to quash the subpoena and make arguments to the court as to why they should not be required to comply with the subpoena.


Oct 23 2012

Child Custody: Physical Custody vs. Legal Custody

One of the first things that parents need to understand before making custody decisions is that there are two types of child custody—legal and physical.  Decisions regarding both types of custody are made with the best interests of the child in mind but the things that courts consider in reaching their decisions differ between the two.

Legal custody refers to the power to make important decisions regarding the general welfare of the child, such as: choice of school that the child attends, extracurricular activities, type of religious education and practice, decisions involving medical and psychological needs of the child etc.

Physical custody refers to the actual place where children live on a day-to-day basis.

There are different considerations that the court takes into account when determining legal and physical custody.

As a general rule, courts prefer joint legal custody arrangements so that the decision making process continues to be shared by both parents.  This general rule favoring shared legal custody does not hold in cases involving abuse, neglect or the level of hostility between the parents so great that it makes cooperation on the issues affecting children impossible.

Courts also generally prefer joint legal custody.  However, joint legal custody does not mean that the time that the children spend with each parent will be divided equally.  The way that the joint physical custody often works out in practice is that one parent continues to serve as a primary caretaker of the child because such arrangement is found to be in the best interests of the child.


Oct 10 2012

Welcome to our new blog!

We are starting a new blog today to help answer questions related to family law and immigration. Please visit us again to see what is in store.