The facts. Mom and Dad were married, had a child, and divorced. As part of the divorce, the parties reached a visitation arrangement that gave Mom primary custody of the child and Dad visitation. Mom later relocated to Costa Rica with the child. Mom made the decision to relocate unilaterally, without informing Dad and without leave of court. Dad moved to modify the custody arrangement. After shifting the burden to Mom, the magistrate court granted the motion and required Mom to return the child to the United States. Mom appealed.
The issues. Mom raised three main errors on appeal: (1) the magistrate court applied the wrong burden of proof; (2) the magistrate court abused its discretion in concluding the modification of custody was in the child’s best interests; and (3) the burden of proof violated due process.
The result. The Idaho Supreme Court affirmed and denied Dad’s request for attorney fees on appeal under Idaho Code § 12-121.
- The Court included a lengthy discussion on the burden of proof in custody modification cases, addressing its history and the burden-shifting framework created by Roberts v. Roberts, 138 Idaho 401, 64 P.3d 327 (2003). Ultimately the Court held that Roberts’ burden-shifting analysis applied because Mom frustrated the custody arrangement to such a degree that violated the arrangement.
- The Court refused to consider Mom’s due process argument, which was raised for the first time in her reply brief. An assignment of error is deemed waived if there is no argument contained in the appellant’s brief. The same is true when it is raised for the first time in the appellant’s reply brief.
- Even though Mom’s appeal merely second-guessed the magistrate court’s findings, the Court denied Dad attorney fees on appeal under Idaho Code § 12-121. The Court reasoned that the case raised a unique question of law concerning the burden of proof in a discrete category of cases and that the appeal materially advanced the law.