## Facts

- In February 2005, Kenneth Dean Schultz and Rhonda Rae Schultz married.
- In May 2005, Rhonda gave birth to their daughter, Sylvia.
- Kenneth frequently abused Rhonda during the marriage.
- On February 2, 2007, Kenneth was arrested after a violent incident and later pleaded guilty to domestic battery.
- After that incident, Rhonda left Idaho with Sylvia and moved to Oregon.
- In Oregon, Rhonda obtained a restraining order against Kenneth.
- In March 2007, Kenneth filed for divorce in Idaho.
- In the divorce action, the magistrate court granted Kenneth supervised visitation.
- Kenneth moved for an order requiring Rhonda to return to Idaho with Sylvia or, alternatively, requiring Rhonda to place Sylvia in Kenneth’s custody.
- Rhonda opposed the motion and filed two affidavits describing Kenneth’s abuse and stating Kenneth had made no attempt to visit Sylvia in Oregon.
- Kenneth presented no evidence to refute Rhonda’s affidavits.
- The magistrate court granted Kenneth’s motion, reasoning that Rhonda’s unilateral move to Oregon made visitation access difficult.
- Rhonda sought permission from the trial court to pursue an interlocutory (permissive) appeal; that request was denied.
- Rhonda then filed a motion in the Idaho Supreme Court seeking permissive appeal under Idaho Appellate Rule 12.

## Issues

1. Whether the Idaho Supreme Court should grant a permissive appeal under Idaho Appellate Rule 12 from an interlocutory custody/relocation order requiring the mother to return to Idaho with the child or surrender custody.
2. Whether the magistrate court abused its discretion by granting the father’s motion without properly applying Idaho’s best-interests analysis, including required consideration of domestic violence evidence.

## Decision

- The Idaho Supreme Court granted Rhonda’s motion for permissive appeal.
- The Court held the magistrate court abused its discretion by ordering Rhonda to return to Idaho with Sylvia or relinquish custody without properly considering the child’s best interests in light of unrebutted evidence of domestic violence.
- The Court reversed the magistrate court’s order and remanded for further proceedings consistent with the proper custody standards.

## Legal Principles

- A permissive appeal may be allowed under Idaho Appellate Rule 12 when immediate review is warranted due to the character and immediate effect of an interlocutory order, including the risk of serious harm from delaying review until final judgment.
- Child custody decisions must be based on the child’s best interests under Idaho’s custody statutes (including the best-interests factors in Idaho Code § 32-717).
- Evidence of domestic violence is a required consideration in custody and visitation determinations (including the domestic-violence provisions in Idaho Code § 32-717B); a court may not treat domestic violence as secondary to visitation convenience.
- A trial court abuses its discretion when it gives controlling weight to a parent’s relocation while failing to weigh significant, unrebutted evidence bearing on the child’s welfare and the safety of the custodial parent and child.

## Conclusion

*Schultz v. Schultz* concerned an interlocutory custody order entered during divorce proceedings after the mother fled Idaho with the parties’ child due to the father’s domestic violence and obtained a restraining order in Oregon. Although the mother submitted affidavits describing repeated abuse and the father offered no contrary evidence, the magistrate court ordered the mother to return to Idaho with the child or surrender custody based largely on the impact of relocation on visitation. The Idaho Supreme Court accepted a permissive appeal, held the magistrate court abused its discretion by failing to apply the statutory best-interests framework with proper attention to domestic violence, and reversed and remanded.


Schultz v. Schultz, 187 P.3d 1234 (2008)