Idaho Grandparents' Rights: The Statute Struck Down in Nelson v. Evans

Idaho is the one state in this cluster where the grandparent visitation statute itself has been struck down. Grandparents do not have automatic rights in any state, and a fit parent's decision about who spends time with their child is constitutionally protected everywhere. In Idaho, that principle now carries unusual force: in Nelson v. Evans, 517 P.3d 816 (Idaho 2022), the Idaho Supreme Court unanimously held Idaho Code Section 32-719, the state's grandparent visitation statute, facially unconstitutional. The statute's words are still printed in the code, but a court cannot apply them as written.

Statute text re-verified live against the official Idaho Statutes on 2026-08-12: Idaho Code §32-719, unamended since 1994, no repeal notation. The full Nelson v. Evans opinion (Idaho Supreme Court Docket No. 49233, filed September 16, 2022) was read for this article from the court's official slip opinion. This article has not yet been reviewed by a licensed attorney.

The Fit-Parent Presumption, Backed by a Struck Statute

Every state page in this series starts from the same constitutional baseline: under Troxel v. Granville, 530 U.S. 57 (2000), fit parents are presumed to act in their children's best interests, courts must give special weight to a fit parent's decision to limit or deny grandparent visitation, and a court may not override that decision simply because it believes a better decision could be made. Idaho went further than most states and codified those principles in the Idaho Parental Rights Act, Idaho Code Sections 32-1010 through 32-1015, which declares parenting a fundamental right and requires any state interference with it to survive strict scrutiny: the restriction must be shown by clear and convincing evidence to be essential to a compelling governmental interest and the least restrictive means of furthering it.

That statutory strict scrutiny framework is exactly what Idaho Code Section 32-719 was measured against in Nelson v. Evans, and it did not survive.

What Happened in Nelson v. Evans

The case began in 2017, when maternal grandparents petitioned under Section 32-719 after the children's parents, whom every court in the case treated as fit, cut off all contact following a bitter family falling-out. The statute was a single sentence: a district court could grant reasonable visitation to grandparents or great-grandparents upon a proper showing that visitation would be in the child's best interests.

In a first appeal in 2020, Nelson v. Evans, 166 Idaho 815, 464 P.3d 301 (2020), the Idaho Supreme Court held the statute contained no timing or trigger restriction at all, so the grandparents could petition even with no divorce or custody case pending, and it sent the case to trial. After a three-day trial, the magistrate court found the parents fit but ordered visitation anyway, concluding that cutting off all contact was not in the children's best interests.

On the second appeal, the parents challenged the statute itself, and in September 2022 the Idaho Supreme Court struck it down on its face. The court's reasoning tracked the two structural defects Troxel identified in Washington's similar law. First, the statute served no compelling state interest as written, because it authorized visitation on a bare best-interest finding; the court expressly refused to read a harm requirement into the text, agreeing with the Hawaii Supreme Court's Doe v. Doe, 172 P.3d 1067 (Haw. 2007), that doing so would amount to judicial legislation. Second, the statute was not narrowly tailored, because it did not restrict when or under what circumstances grandparents could petition and gave courts no guidance for applying the best-interest test without second-guessing fit parents. The court reversed the visitation order and dismissed the case outright, noting that remanding would only force the parents into still more litigation burdening their parental rights.

What Idaho Law Looks Like After Nelson

The statute's text is still on the books. We re-checked the official Idaho Statutes site on 2026-08-12: Section 32-719 reads exactly as it did when enacted in 1994, with no amendment and no repeal notation, and no replacement grandparent visitation section appears in Title 32, Chapter 7, where it lives. We did not locate a successor statute elsewhere in the code. If the legislature enacts a new, Troxel-compliant visitation statute, the picture will change, but it has not done so as of this writing.

The practical meaning is stark: a petition filed under Section 32-719 today runs into a controlling Idaho Supreme Court holding that the statute is unconstitutional on its face, which a trial court is bound to follow. Older Idaho decisions that described how the statute operated, such as Leavitt v. Leavitt, 142 Idaho 664, 132 P.3d 421 (2006), which required grandparents to prove their case by clear and convincing evidence, are now historical context; they describe a statute that can no longer be applied.

Honesty cuts both directions here. This does not mean Idaho grandparents have no options at all. Contact by agreement with the parents is unaffected, the custody track described below is a separate framework, and a future legislature could act. But as of today, Idaho has no enforceable court-ordered grandparent visitation route over a fit parent's objection, and a reader should treat any source describing Section 32-719 as current, usable law as out of date.

Custody: Standing Tied to Actual Residency

Idaho's custody framework, Idaho Code Section 32-717(3), takes a different approach than the struck visitation statute, and Nelson v. Evans did not address it. Where a child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangement serves the child's best interest. It applies to the comparatively rare situation where the grandchild already lives with the grandparent, not to a grandparent seeking scheduled visits with a grandchild who lives with a parent.

Idaho also has a standalone De Facto Custodian Act, at Idaho Code Title 32, Chapter 17, Sections 32-1701 through 32-1705, and it is the provision written most directly for a grandparent who is already raising a grandchild. Section 32-1703 defines a de facto custodian as someone related to the child within the third degree of consanguinity, which includes a grandparent, who has been the child's primary caretaker and primary financial supporter while the child resided with that person without a parent present and without demonstrated consistent participation by a parent, for six months or more if the child is under three, or one year or more if the child is three or older. The section does not reach a child placed with the individual by court order or voluntary agreement under Title 16, and it excludes an individual who is or was married to or cohabiting with a parent of the child.

Someone who fits that definition may file a petition seeking a determination of de facto custodian status and custody, or move to intervene in a pending custody case under Idaho Rule of Civil Procedure 24, under Section 32-1704. De facto custodian status must be stipulated to or found by clear and convincing evidence; the petitioner or intervenor must then prove by a preponderance of the evidence that the custody sought is in the child's best interests, applying the factors in Section 32-717(1). Under Section 32-1705, the court may then grant sole or joint legal and physical custody in the same manner as it would grant such custody to a parent. The residency and support prerequisites are demanding, and this is a custody track rather than a substitute for visitation, but a grandparent who has actually been the child's caretaker for the required period should have it evaluated.

Adoption: An Unaddressed Question

No Idaho statute expressly states whether a previously entered visitation order survives an adoption of the child. Idaho Code Section 16-1509, the general rule on the effect of adoption, relieves the natural parents of all parental duties and rights over the child, with no grandparent-specific carve-out and no stepparent exception in the statute's text. After Nelson, the more basic point is that new Section 32-719 orders are no longer available at all, so for most families the adoption question now matters only for orders entered before the statute was struck, and how an Idaho court would treat such an order today is itself an open question a lawyer should evaluate.

Mediation and Informal Resolution First

With the statute struck, repairing the relationship outside court is not just the wise first step in Idaho, it is realistically the primary route. A direct conversation, a family mediator, or a counselor can produce what an Idaho court currently cannot order over a fit parent's objection: actual time with the grandchild. The Nelson litigation itself is a cautionary tale in both directions. The grandparents litigated for roughly five years across two Supreme Court appeals and ultimately received nothing, and the parents testified that defending the case cost them more than $50,000 in attorney fees, along with years of family strain.

The Litigation Reality in Idaho

Any Idaho grandparent considering court should understand that a visitation petition now confronts Nelson v. Evans head-on, and that the constitutional presumption favoring a fit parent's decision is at its strongest here. Where the facts are genuinely serious, for example a child already living with the grandparent, or concerns about parental fitness that the child-protection system would recognize, separate legal frameworks such as the custody statute or guardianship may apply, and those are fact-intensive questions. If, after exploring mediation, an Idaho grandparent believes their situation may fit one of those separate tracks, a family-law attorney licensed in Idaho can evaluate the specific facts and give a realistic assessment of what, if anything, Idaho law currently offers.

Related Resources

For the separate custody track, see can grandparents get custody. For a national overview of grandparent visitation, see grandparent visitation rights and the grandparents' rights by state hub. For related Idaho family-law topics, see Idaho child custody laws and Idaho divorce laws.

Disclaimer

This article provides general information about Idaho grandparents' rights law. It is not legal advice and does not create an attorney-client relationship. Idaho's legal landscape on this topic changed fundamentally in 2022 and could change again if the legislature enacts a replacement statute. Verify current details with the district court clerk or a licensed Idaho attorney before acting on anything here.

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Last updated: 2026-08-12.