Overholser v. Overholser, 122018 IDSCCI, 46021

Docket Nº:46021
Opinion Judge:BRODY, JUSTICE.
Party Name:TIFFINY OVERHOLSER, nka TIFFINY TAYLOR, Petitioner-Appellant, v. SHECKY J. OVERHOLSER, Respondent. MARK TAYLOR and KATHRYN TAYLO Third Party Plaintiffs-Appellants, v. SHECKY J. OVERHOLSER, Third Party Defendant-Respondent.
Attorney:Fuller Law Offices, Twin Falls, for appellants. Daniel S. Brown argued. Roy, Nielson, Barini-Garcia & Platts, Twin Falls, for respondent. Seth C. Platts argued.
Judge Panel:Chief Justice BURDICK, and Justices HORTON, BEVAN and STEGNER, CONCUR.
Case Date:December 20, 2018
Court:Supreme Court of Idaho
 
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TIFFINY OVERHOLSER, nka TIFFINY TAYLOR, Petitioner-Appellant,

v.

SHECKY J. OVERHOLSER, Respondent.

MARK TAYLOR and KATHRYN TAYLO Third Party Plaintiffs-Appellants,

v.

SHECKY J. OVERHOLSER, Third Party Defendant-Respondent.

No. 46021

Supreme Court of Idaho

December 20, 2018

Appeal from the Magistrate Court of the Fifth Judicial District of the State of Idaho, Twin Falls County. Hon. Thomas D. Kershaw, Jr., Magistrate Judge.

Order Denying Standing, vacated, and the case is remanded for further proceedings consistent with this opinion.

Fuller Law Offices, Twin Falls, for appellants. Daniel S. Brown argued.

Roy, Nielson, Barini-Garcia & Platts, Twin Falls, for respondent. Seth C. Platts argued.

BRODY, JUSTICE.

This appeal arises from the denial of standing to custodial grandparents under Idaho Code section 32-717(3). The mother placed her twelve-year-old son in the care of his grandparents on a full time basis in August 2017. Three months later the father petitioned the magistrate court to modify custody to grant him residential custody of his son. Although both Mother and Grandparents petitioned the court to give Grandparents residential custody, the magistrate court, during a hearing on father's motion for temporary custody, determined that Grandparents did not have standing. Ruling from the bench, the magistrate court determined that Idaho Code section 32-717(3) on its face violated the father's constitutional rights because it placed Grandparents on the same footing as parents. The magistrate court also reasoned that the more specific time requirements set forth in the De Facto Custodian Act, Idaho Code sections 32-1701-32-1705, (I.C. § 32-1703) should govern. On a motion for reconsideration, the magistrate court, appearing to recognize our decision in Hernandez v. Hernandez, 151 Idaho 882, 884-86, 265 P.3d 495, 497-99 (2011) wherein we held that Idaho Code section 32-717(3) is constitutional, decided that Grandparents likely could not meet the requirements of Idaho Code section 32-717(3), reasoning that "[t]he court doubts that a short period of residence pursuant to an impermanent permission by one parent is a 'stable relationship.'"

Mother and Grandparents were granted permission to appeal the magistrate court's decision to this Court. On appeal, they argue that the magistrate court's decision is contrary to this Court's decision in Hernandez. We agree and vacate the magistrate's order denying standing and remand with instructions to determine whether Child was living with Grandparents at the time they petitioned the court and whether a stable relationship existed between them. If yes, the Grandparents should be allowed to participate in the custody determination within the boundaries set forth in Hernandez.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Child is thirteen-years-old. Mother and Father have been married to, and divorced from, each other twice. The magistrate court has managed Mother and Father's divorce proceedings, including custody amendments for Child, since September 2011.

Prior to this dispute, Mother and Father had joint legal and physical custody of Child with Mother having residential custody. Father received custodial access, exercised his visitation rights, and has paid child support. Child also resided with both parents for the times Mother and Father resumed their relationship.

In her answer to Father's petition for custody, Mother alleges that Child developed difficult behavior over the last few years-becoming "progressively disrespectful, rebellious, and impossible to control"-which led her to leave him in the care of her father and step-mother ("Grandparents"). Mother alleges that Grandparents moved to Twin Falls to help Mother raise Child. Having acquired a home five doors down from Mother, Grandparents picked Child up every day from school, assisted with his homework, and otherwise provided everyday care of Child. Mother and Grandparents contend that Child's behavior at home and school dramatically improved as he resided with Grandparents.

According to Father's petition, after Child moved in with his Grandparents in August 2017, Father briefly moved to Twin Falls, residing with Grandparents "off and on" as he transitioned his residence to Idaho. However, Father later moved back to Elko, Nevada and currently resides there. In January 2018, Mother also relocated to Elko after marrying again.

On November 2, 2017, Father filed a petition and motion to modify custody and support in the divorce proceeding so that Father would have residential custody of Child. Mother then filed an answer and counterclaim, asking the court to give residential custody to Grandparents, subject to custodial access by both Mother and Father. Grandparents subsequently filed a Motion to Intervene and Petition for Custody. After filing a response to Mother's counterclaim, Father filed a Motion for Temporary Custody and Temporary Child Support. Two weeks later, the magistrate court granted Grandparent's Motion to Intervene. Both Mother and Grandparents then filed Declarations in Opposition to Father's Motion for Temporary Orders.

The magistrate court held a hearing on Father's motion for temporary custody. At its conclusion, the magistrate court granted Father temporary custody, and expressed concern over the meaning of "stable relationship" in Idaho Code section 32-717(3). The...

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