The Idaho Supreme Court recently addressed the scope and nature of when the presumption of parental fitness can be rebutted. This includes the due diligence required to ensure parental fitness when the presumption has been rebutted.
The case involved two children whose mother in the United States was unfit to care for the children. The father lived in Mexico. The magistrate court determined the constitutional right of parents to raise their children. That presumption of fitness on the part of the biological parent dictated that the father in Mexico be awarded custody of the children. No home study was required because the ICPC1 did not apply. Concerns were raised by the Department and the GAL2 as to verifying the father’s fitness. The father’s residence was in Mexico, his absence from the children was lengthy, and his criminal background was uncertain.
The Idaho Supreme Court stated that the constitutional right to raise biological children and the fitness presumption applies to a non-U.S. resident. However, the court still has an obligation to ensure that placement with the biological parent will not jeopardize the children’s safety.
“When a parent seeks custody of children who have not been in his custody and care for an appreciable period of time, it is vital that the court recognize the primary obligation to ensure the children’s safety. This consideration is especially important when placing children outside the United States, because once a court makes that determination, it is thereafter dispossessed of jurisdiction.”
Thus, while the presumption was not removed or necessarily altered, the court requires due diligence in determining parental fitness, particularly if there appears to be a real likelihood of loss of jurisdiction.
1Interstate Compact on the Placement of Children
2GAL is guardian ad litem, which is a court appointed attorney or representative for minor children.
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