Idaho divorce and child custody mediation: how the court rules work

In Idaho, any family law case with a dispute over custody or parenting time is subject to mediation with a child custody mediator who meets the Idaho Supreme Court's qualifications. A judge can order it on a party's motion, at a scheduling conference, when a trial date is requested and everyone says mediation would help, or on 7 days' notice. Other issues, such as property or support, can be sent to mediation under a separate rule. Unless the parties or the court arrange otherwise, each parent pays half of the mediator's fees.

This is general information, not legal advice. It covers Idaho only. Your judicial district or the judge's order in your case may add requirements.

The rules that govern Idaho family mediation

Idaho family mediation is mostly governed by court rules, not statutes:

• Idaho Rule of Family Law Procedure (I.R.F.L.P.) 602 covers mediation of child custody and visitation disputes.¹
• I.R.F.L.P. 603 covers mediation of all other issues in a family case, such as property, debts, and support.¹
• I.R.F.L.P. 601 lets a judge order screening to see whether mediation is a good fit.¹
• Idaho Court Administrative Rules (I.C.A.R.) 76 and 76A set who can be on the Idaho Supreme Court's roster of child custody mediators, and how a mediator can be removed.²

Idaho custody law itself, including the factors a judge weighs, is in Title 32 of the Idaho Code.³⁴

When a judge can order custody mediation (Rule 602)

Rule 602(b) says all family law actions "involving a controversy over custody or parenting time of a minor child are subject to mediation" by a child custody mediator qualified under I.C.A.R. 76.¹

Under Rule 602(d), a court may order an issue to mediation:¹

1. on a motion by a party;
2. at a Rule 701 conference (a scheduling, status, or pretrial conference);
3. when a trial setting is requested, if all parties say mediation would be beneficial; or
4. on 7 days' notice to the parties, if the court decides mediation is appropriate.

Sending a case to mediation doesn't take it out of the judge's hands. The court keeps authority to manage the case while mediation is pending (Rule 602(c)).¹

Screening before mediation (Rule 601)

In any family case involving a child, the judge may order the parents to take part in alternative dispute resolution (ADR) screening. Its purpose is to assess whether the parents are appropriate for, or prepared for, mediation. Screeners are appointed by the judge and must be licensed in Idaho as a psychologist, licensed master social worker, or licensed professional counselor. The screener interviews each parent and files a written report with an Idaho criminal history check on each parent. The report does not recommend custody or visitation.¹

Factors the screener considers include domestic violence (including a party's impulse control and anger management), drug and alcohol use or allegations of it, each parent's ability to state their own needs and consider the child's needs, and the parties' mental health and emotional stability (Rule 601(c)(2)).¹

How custody mediation works

Choosing the mediator. The parties have 28 days from the mediation order, or other time the court allows, to choose any person to act as mediator and report the choice to the court. If they don't choose within 28 days, the court must appoint a mediator from the roster kept by the Idaho Supreme Court's Administrative Office of the Courts (Rule 602(e)).¹

First session. The first session must be scheduled within 14 days after the mediator is selected or appointed, unless the court orders otherwise (Rule 602(f)).¹

What the mediator must explain. At the first meeting, before mediation begins, the mediator must describe the process and its cost. That includes how mediation differs from therapy and counseling, when the mediator will meet alone with either parent, what is confidential, that any agreement must be made with both parents' consent, and that the parents should get independent legal advice before settling issues and when putting an agreement in final form. The mediator must also explain that any agreement must be turned into a final agreement and submitted to the court for review and approval (Rule 602(h)(2)).¹

Who decides. Rule 602 says an agreement is "to be based on the decisions of the parties, not the decisions of the mediator." The mediator's job is to help identify issues, reduce misunderstandings, clarify priorities, explore compromise, and find points of agreement (Rule 602(a)).¹ The mediator must be impartial and must tell the parties about anything that could suggest bias (Rule 602(h)(1)).¹

Lawyers. Idaho's rule is different from some states. Attorneys and other people are excluded from mediation sessions unless the mediator asks them to attend or the court orders it. Lawyers may communicate with the mediator, but only in writing or by conference call (Rule 602(j)).¹ See do I need a lawyer for divorce mediation.

Confidentiality. The mediator must follow the confidentiality rules the parties agree to, and the protections of Idaho Rules of Evidence 408 and 507 extend to mediation (Rule 602(k)).¹

What the judge hears. The mediator and the judge may not communicate without notice to all parties. The mediator reports only, "without comment or observation," whether the parties are at an impasse, have reached a full or partial agreement, missed a session, are still mediating meaningfully, or the mediator has withdrawn (Rule 602(i)). The mediator must report status every 28 days until mediation ends, and within 7 days after the last session the mediator or the parties must tell the court whether the case settled (Rule 602(l)).¹

The agreement. If you agree on any issue, the mediator must write it down and give a copy to the parties or their attorneys (Rule 602(h)(3)).¹

Ending mediation. The court or the mediator may end mediation if further progress toward a reasonable agreement is unlikely (Rule 602(m)).¹

What it costs

Rule 602(g) says the mediator's fees and expenses must be clearly set out and explained at the first meeting. Each party is responsible for one-half of the mediator's fees and expenses unless the parties make other arrangements or the court orders otherwise. If the mediator isn't paid, the court may order payment on the mediator's motion.¹

The rules don't set a dollar amount, and we don't publish typical prices because no official source does. Ask for the mediator's fee terms in writing. See divorce mediation cost.

Property, support, and other issues (Rule 603)

Issues other than custody and visitation can be referred to mediation under Rule 603, at the court's discretion, on the same four triggers as Rule 602. Unless the court orders otherwise, the first session must take place within 42 days after the mediator is chosen or appointed. Mediators are paid their regular fees, and the parties share them pro rata (proportionally) unless they arrange otherwise or the court orders it.¹

For court-appointed mediators on these issues, Rule 603 describes a list kept by the courts of mediators who are Idaho State Bar members admitted to practice for at least 5 years with at least 40 hours of mediation training (Rule 603(m)).¹

Idaho also has a separate, voluntary judicial settlement conference, where a judge helps the parties negotiate. Both parties must agree to it, and the judge has discretion to deny it (Rule 604).¹

Who can be a child custody mediator (I.C.A.R. 76 and 76A)

The Idaho Supreme Court's Administrative Office of the Courts keeps a roster of approved child custody mediators, which is available to the public. It lists each mediator's name, contact information, license or degree, and the counties and districts where the mediator will work (I.C.A.R. 76(a)).² You can find it through the Idaho Supreme Court Child Custody Mediators Roster.⁵

To get on the roster, an applicant needs at least one of these (I.C.A.R. 76(c)):²

• a current professional license or membership, such as the Idaho State Bar, psychologist, professional counselor, master social worker, or marriage and family therapist;
• a bachelor's degree from an accredited college or university; or
• membership in the Association for Conflict Resolution at the advanced practitioner level, or the Idaho Mediation Association as a Certified Professional Mediator (CPM), or a national organization with equivalent standards.

Training requirements (I.C.A.R. 76(d)–(e)):²

• Licensed professionals need at least 40 hours of general mediation training, with 20 of those hours in child custody mediation.
• Applicants qualifying by degree or mediation-organization membership need at least 80 hours, with 40 in child custody mediation.
• Child custody training must cover child custody, family dynamics in separation and divorce, domestic violence, children's needs, child development, and conflict resolution theory.
• To stay on the roster, mediators must complete 15 hours of continuing education every 3 years, including at least 2 hours of mediation ethics.

Each judicial district's administrative judge may add criteria by administrative order (I.C.A.R. 76(d)(5)).²

Complaints. Anyone who knows of misconduct by a rostered mediator may file a complaint with the Administrative Office of the Courts within 180 days of discovering the facts. Grounds for removal include certain criminal violations, a protection or no-contact order that affects fitness to serve, dishonesty, breaking confidentiality, and unethical behavior (I.C.A.R. 76A).²

Domestic violence

Idaho law treats domestic violence as central to custody decisions:

• Domestic violence, "whether or not in the presence of the child," is one of the factors a court may consider in deciding a child's best interests (Idaho Code § 32-717(1)(g)).³
• Idaho generally presumes joint custody is in a child's best interests, but presumes the opposite if a parent is found by the court to be a "habitual perpetrator of domestic violence" (Idaho Code § 32-717B(4)–(5)).⁴
• Domestic violence is a screening factor under Rule 601 and a required training topic for child custody mediators under I.C.A.R. 76.¹²

In the text of Rule 602 we did not find a provision that automatically excuses cases involving domestic violence from mediation. If you have safety concerns, tell the court and the mediator early. The judge can order screening under Rule 601, and the court or mediator can end mediation under Rule 602(m).¹ See when divorce mediation is not recommended.

Idaho custody basics

• Best interests. In a divorce, the court considers all relevant factors, which may include each parent's wishes, the child's wishes, the child's relationships with parents and siblings, the child's adjustment to home, school, and community, the character and circumstances of everyone involved, the need for continuity and stability, and domestic violence (Idaho Code § 32-717(1)).³
• Joint physical custody gives each parent significant periods of time with the child. It "does not necessarily mean" equal time. Joint legal custody means the parents share decision-making about health, education, and general welfare. If a court declines to award joint custody, it must state its reasons (Idaho Code § 32-717B).⁴
• Residency. A divorce may not be granted unless the plaintiff has lived in Idaho for six full weeks before filing (Idaho Code § 32-701).⁶

Family Court Services

The Idaho courts' Family Court Services offices list child custody mediation, help with parenting plans, supervised access, and co-parenting education among the services they may offer, and they direct families to the office in their judicial district for what is available locally.⁵ See child custody mediation and how to prepare for divorce mediation.

Browse Idaho mediators on our Idaho pages, or get matched.

This guide is general information, not legal advice.