IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 34790 KENNETH DEAN SCHULTZ,
Plaintiff-Respondent,

v. RHONDA RAE SCHULTZ,
Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) Boise, May 2008 Term
2008 Opinion No. 82
Filed: June 13, 2008
Stephen W. Kenyon, Clerk

Appeal from the District C ourt of the Fourth Judicial District, State of Idaho, Ada County. Hon. Terry R. McDa niel, Magistrate Judge.
Magistrate’s order on child custody, reversed and remanded.
Vaughn W. Fisher, Jr., Bois e, argued for appellant.
Brooks Law, P.C., Nampa, for responde nt. Kimberly Danielle Brooks argued.

__________________________________ BURDICK, Justice Appellant Rhonda Rae Schultz ap peals from a magistrate cour t’s order requiring her to
return to Idaho with her mi nor daughter or relinquish cust ody of the child to Respondent
Kenneth Dean Schultz. We reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND Kenneth Dean Schultz (Kenneth) and Rhonda Rae Schultz (Rhonda) were married in Boise on February 25, 2005. Th eir only child, Sylvia Susan Sc hultz (Sylvia), was born on May 21, 2005. Kenneth and Rhonda had a tumultuous re lationship, characterized by domestic abuse since before they married and became parents. On February 2, 2007, Kenneth was arrested fo r domestic violence ag ainst his wife; he later pleaded guilty to domestic battery, I.C. § 18-918. After this instance of abuse, Rhonda fled to Oregon with Sylvia. Rhonda immediately file d for a restraining order in Oregon, which was granted. A month later, Kenneth filed for divor ce in Boise. While that action was pending, the Oregon court granted Kenneth temporary supervis ed visitation with Sy lvia. The Idaho and Oregon courts then agreed ju risdiction was proper in Idaho.

1Seven months after Rhonda fled to Oregon, and four months after the Oregon court granted him visitation, Kenneth filed a motion re questing that the Idaho court order Rhonda to return with Sylvia to Boise or surrender cust ody of the child to Kenneth. Rhonda opposed this motion, arguing it was not in Sylvia’s best intere st to move from Oregon or to live with her father, whom she had not seen in months. R honda also argued, based on Kenneth’s pattern of domestic abuse, that she feared for their safety should she and Sylvia be ordered to return. Nonetheless, relying on Hopper v. Hopper , 144 Idaho 624, 167 P.3d 761 (2007), the magistrate entered an order requiring Rhonda and Sylvia to return to Idaho or requiring Rhonda to relinquish custody of the child to Kenneth. Four days later Rhonda filed a motion for permissive appeal and stay, but this was deni ed. She then petitioned this C ourt for permission to appeal and stay the execution of the magistrate cour t’s order. This Court granted her motion.
II. ANALYSIS This case presents a single issue: whether the magistrate court ab used its discretion by entering an order requiring Rhonda to return to Idaho with her daughter or relinquish custody of Sylvia to Kenneth. Additionally, Ke nneth requests attorney fees on a ppeal. We will turn first to the propriety of the order, and then address the requested fees. A. The magistrate court abused it s discretion by entering the order. Rhonda argues that the magistrate court a bused its discretion by entering an order requiring her to return to Idaho with Sylvia or to surrender custody of the child to Kenneth. Child custody determinations are left to the discretion of the magistrate court, and will be overturned on appeal only fo r an abuse of discretion. Hoskinson v. Hoskinson , 139 Idaho 448, 454, 80 P.3d 1049, 1055 (2003). This Court review s discretionary decisions to determine whether the trial court “(1) correct ly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion and consistently with the lega l standards applicable to the choices before it; and (3) reached its decision by an exercise of reason.” Hopper , 144 Idaho at __, 167 P.3d at 763. The trial court’s findings of f act will be upheld if there is substantial and competent evidence supporting them. Id . Here, the order fails unde r all three prongs of the discretionary review test. 1. It is unclear whether the magistrate c ourt perceived the custody determination before it as an issue of discretion. It is unclear whether the magistrate court perceived the question before it as one of
discretion. Its order states:

21. Plaintiff’s Motion for Order Re quiring Defendant Return Minor child to Idaho Jurisdiction or in the Alternative Grant Plaintiff Temporary Custody is hereby granted.
2. Pursuant to Hopper v. Hopper, 2007 Ida. LEXIS 61 (Idaho 2007) [sic] RHONDA RAE SCHULTZ (hereinafter “Rhonda”) is ordered to return the minor child SYLVIA SUSAN SCHULTZ, (hereinafter “Sylvia”) to Idaho ju risdiction within fourteen (14) days of the entry of this Order.
3. Should Rhonda refuse to return to Idaho with Sylvia, Rhonda shall be ordered to relinquish custody of Sylvia to KENNETH DEAN SCHULTZ within fourteen (14) days of the entry of this Order.
This order does not discuss the standard und er which the magistrate considered the motion, and it does not show that the court unde rstood that granting or denying Kenneth’s
motion was within its discretion. At most, this order cites to the Hopper case, which in turn lays out the discretionary standard fo r determining child custody issues and makes clear that the best interest of the child is of paramount importance in custody determinations. See 144 Idaho at __, 167 P.3d at 763-64. Nonetheless, the court’s citation to Hopper could also demonstrate that it believed the order was mandated by the holding in Hopper . Indeed, it appears from the whole of the order that the magistrate believed that Hopper removed his discretion. As such, the magistrate court abused its discretion. 2. The magistrate court did not act consiste ntly with the applicable legal standards. Second, the magistrate court di d not act consisten tly with the legal choices presented by the parties because it is not clear whether the court looked to the child’s best interest and because its order is not supported by substa ntial and competent evidence.
We cannot determine from the order whether th e magistrate court looked to Sylvia’s best interest when making its decision. A court must consider the best interest of the minor child when making custody determinations, and when analyzing this may consider: (a) The wishes of the child’s parent or parents as to his or her custody; (b) The wishes of the child as to his or her custodian; (c) The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings; (d) The child’s adjustment to his or her home, school, and community; (e) The character and circumstances of all individuals involved; (f) The need to promote continuity and st ability in the life of the child; and

3(g) Domestic violence as defined in s ection 39-6303, Idaho Code, whether or not in the presence of the child. I.C. § 32-717(1). The court may also consid er whether one parent commits child custody interference and any statutory defenses to that crime as defined by I.C. § 18-4506. Hopper , 144 Idaho at __, 167 P.3d at 764. Additionally, a parent leaving Idaho with a child is a factor in determining the child’s best interest, but not a “determinative condition in a child custody
determination.” Navarro v. Yonkers , 144 Idaho 882, __, 173 P.3d 1141, 1147 (2007). The magistrate court’s order contains no fi ndings, nor any referenc es to the evidence before the court which might support its decision, as to what would be in Sylvia’s best interest.
Rhonda introduced unrebutted evidence as to each of the I.C. § 32-717 factors, and Kenneth
introduced evidence on some of the factors. Ne vertheless, the court made no findings and did not determine whether it would be in Sylvia’s best in terest to remain with he r mother or to return
to Boise. Such a lack of elaboration is cons idered an abuse of discretion because this Court
cannot review the order to determine whether the lower court acted consiste ntly with applicable legal standards. See Moye v. Moye , 102 Idaho 170, 172, 627 P.2d 799, 801 (1981). Kenneth asserts that the magistrate made implicit findings, and that these findings are supported by substantial and competent evidence. Before analyzing the evid ence, however, it is necessary to address Kenneth’s assertion th at Rhonda failed to support her position with evidentiary facts. Kenneth’s argument is that th ere are no facts in the record because he was not afforded an opportunity to cross-examine Rhonda as to any statements she made in her
affidavits. 1 This argument presumes that an affidavit from an interested party is not sufficient
without additional evidence. 2 However, there is no requirement that an interested party corroborate her testimony, and a court does not err by considering an affidavit from an interested party without further corroboration. Wait v. Leavell Cattle, Inc ., 136 Idaho 792, 798, 41 P.3d 220, 226 (2001). 3 Additionally, in a contested, inte rlocutory motion, the court may make inferences from all admissible evidence including affidavits. Therefore, the record contains sufficient admissible evidentiary f acts for this Court to review.

1 Kenneth had the opportunity to submit his own affidavits in response to Rhonda’s opposition to his motion, but did not take advantage of the opportunity to rebut her testimony. 2 It is unclear from Kenneth’s argument how the Court could still consider his affidavits if we were to accept the premise of his argument, as he too is an interested party. 3 Although Wait dealt with a motion for summary judgment, the general, evidentiary principle that an interested party need not corroborate her testimony applies equally well to the current motion.

4Here, even if the magistrate made the implicit decision that it would be in Sylvia’s best interest to return to Boise or Kenneth’s custody–a nd this is not clear from the face of the order–
such a decision is an abuse of di scretion. “An abuse of discretion by the trial court occurs when
the evidence is insufficient to support its conclusion that the welf are and interests of a child will be best served by a particular custody award.” Moye , 102 Idaho at 172, 627 P.2d at 801; see also
Navarro , 144 Idaho at __, 173 P.3d at 1147. It is also an abuse of discretion for the trial court to over emphasize any one factor. Moye , 102 Idaho at 172, 627 P.2d at 801. All of the relevant factors impacting the custody decision must be considered and reflected in the record. See id

. In opposition to Kenneth’s motion for a tem porary custody order, R honda relied on two affidavits. In her first affidavit, filed prior to Kenneth’s motion in or der to support her motion for temporary support, Rhonda testified: 4) During the course of our marriage Kenne th Dean Schultz physically abused me on repeated occasions.

. . . . 7) While I lived in marriage with Kenneth Dean Schultz he would not allow me to take Sylvia to the doctor. 8) While I lived in marriage with Kenneth Dean Schultz he prohibited me from working and would not allow me to coll ect government assistance for which I believe me [sic] and Sylvia to be qualified. 9) While I lived in marriage with Kenneth Dean Schultz he did not obtain medical insurance for Sylvia or me even t hough it was available through his employer.

. . . . 11) On February 2, 2007 Plaintiff Kenneth Dean Schultz had been drinking and wanted me to drink with him. When I refused he became angry. He grabbed me by my hair and slapped me, knocking me to the ground. He slapped me again while I was on the ground, then picked me up and physically threw me out the front door. Sylvia ran out the door behind me and we were both locked out of the house. I called the police and waited at a neighbor’s house. Kenneth Dean Schultz was arrested when the police arrived.

. . . . 18) Kenneth Dean Schultz has not seen Sylv ia or attempted to make arrangements to see Sylvia as provided for in the C ourt Orders from [Oregon] Circuit Judge Russell B. West. Then, in her affidavit filed in opposition to Kenneth’s moti on, Rhonda testif ied about the beginning of her relationship w ith Kenneth, including liv ing in a van with him while pregnant, his refusal to help her obtain state assistance, his attempts to convince her to abort their unborn

5child, his refusal to allow her to go on doctor-o rdered bed rest, his attempts to cause a miscarriage by hitting her in the stomach, and his telling her he wi shed she would miscarry. She also details four specific instances of domes tic violence, each occurring while Kenneth was drinking. During one, Kenneth slapped Rhonda and then locked her in their bedroom for two days and would not allow her to see Sylvia. During another instance of abuse, Kenneth hit Rhonda, pulled her to the ground by her hair, and threw a beer at her, missing and breaking a nearby lamp. After another inst ance of abuse where Kenneth threw Rhonda into a wall and slapped her, she left the home to escape the ba ttery and Kenneth threatened that she would be sorry for leaving Sylvia with him. Rhonda fl ed to a neighbor’s home, called the police, and when they arrived, she recovered Sylvia and they left to stay with Kenneth’s mother in Oregon for several weeks before returning to Boise. Du ring the final instance of domestic abuse (the
same instance detailed in her fi rst affidavit), Kenneth physically threw Rhonda out of their home and Sylvia ran after her. Rhonda called the police, who arrested Ke nneth. The following Saturday, February 3, 2007, fearing for her safety and Sylvia’s safety, Rhonda again took Sylvia to Oregon.
Rhonda also testified that once in Ore gon, she petitioned an Oregon court for a restraining order against Kenneth on Monday, Febr uary 5, 2007. This request was granted. She also took Sylvia to the doctor for shots and check -ups. After staying w ith relatives, she and Sylvia lived alone together in an apartment and Rhonda worked fu ll-time. Their home is near a park and a school; additionally, both mother and child receive assistance from Rhonda’s family and from various Oregon agencies. Moreover, Rhonda’s affidavit details that Ke nneth contested the restraining order, and consequently, the Oregon circuit court held a hearing in April 2007. Although Kenneth was to appear telephonically, he failed to appear and th e case continued without his presence. At that hearing, the court issued a visitation order, allo wing Kenneth supervised visitation with Sylvia. Rhonda then arranged for the visitation, but Ke nneth failed to visit Sylvia. When these arrangements failed, Rhonda attempted to allow Kenneth to visit Sylvia by having his mother take the child to Boise; Kenneth also declined this visitation arrangement. Finally, Rhonda testified: “I would like for Sylvia to know her fath er and I think it is important that he have a relations hip with her. However, I do not want either of us to be alone
with him. I will not feel safe for either of us unless he comp letes some alcohol rehabilitation

6program and maybe not even then.” Rhonda also stated her belief that Sylvia would no longer recognize her father, since he has not been visiti ng her, and stated she wants the two to have a period of readjustment and familiarization. Rhonda stated she wants Sylvia to remain in the stable home and community where they now reside. Kenneth refuted none of Rhonda’s testimony. Nowhere in the record before this Court does he deny the numerous instances of abuse Rhonda details, nowhere in the record does he refute that he refused to allow Sylvia to have proper medical and financial support, and nowhere
in the record does he indicate that he has attempted to visit Sylv ia or that he has financially supported her as ordered by the Idaho court. 4 Here, the magistrate failed to consider numerous factors. It appears from the order that the only factor the court consider ed was the distance between the father and child created when Rhonda moved to Oregon. Such an over-emphasis of this single factoris an abuse of discretion. See Moye , 102 Idaho at 172, 627 P.2d at 801. Additionally , this Court has made clear that a unilateral move out-of-state by one parent is but one factor to consider when making custody
determinations. Navarro , 144 Idaho at __, 173 P.3d at 1147. 5 The magistrate court also failed to consider Rhonda’s wishes for Sylvia, the exte nsive history of domestic abuse between the parents and in the presence of Sylvia, the fact that Kenneth made no attempts to visit his daughter either in Oregon or by having his mother bring Sylvia to Boise, or the stability and community support offered to Sylvia in Oregon. The failure to recognize these factors and use
them to evaluate the best interests of Sylvia constitutes an abuse of discretion. See Moye , 102 Idaho at 172, 627 P.2d at 801. Likewise, although Rhonda argu ed that Kenneth’s habitual domestic violence overcame the presumption that joint custody was in Sylvia’s best interest, the magistrate made no findings
and did not decide this i ssue. Under Idaho law, it is presum ed that a continui ng relationship with both parents is in the child’s best interest. Hopper , 144 Idaho at __, 167 P.3d at 764 (citing I.C. §§ 32-717B(4), 32-1007, 18-4506). However, this presumption can be overcome if the court

4 Kenneth did pay $1000 temporary support as ordered by the Oregon court. 5 Although the magistrate did not have the benefit of Navarro at the time of his decision, Hopper was specifically decided on the facts of that case—the mother’s unlawful interference, perjured statements and move out of state. 144 Idaho at __, 167 P.3d at 764.

7finds one parent is a habitual perpetrato r of domestic violence. I.C. § 32-717B(5). 6 In light of the evidence before it, the magistrate court’s fail ure to address this argument, in addition to its failure to address I.C. § 32-717(1)(g), was an abuse of discretion; th e record does not support that Sylvia’s best interests w ould be served by removing her fr om a stable home with a support network and returning her to the custody of a father with a history of domestic abuse. See Moye , 102 Idaho at 172, 627 P.2d at 801. In addition to failing to consider Sylvia’s best interest, the court stated: “Pursuant to Hopper v. Hopper . . . RHONDA RAE SCHULTZ (hereinaft er “Rhonda”) is ordered to return the minor child SYLVIA SUSAN SCHULTZ, (hereinafter “Sylvia”) to Ida ho jurisdiction within fourteen (14) days of the entry of this Order.” This case, how ever, is readily distinguishable
from Hopper , and the Hopper case in no way mandates that a court order a parent to return to Idaho without first determining whether that m ove would serve the child ’s best interest. See
Navarro , 144 Idaho at __, 173 P.3d at 1147.
In Hopper , this Court vacated a cust ody order that granted cust ody to the mother who had
moved to Montana with the child and filed a fa lse domestic violence re port. We remanded for a custody hearing “where the father has the opportunity to have the contact w ith his child to which
he is entitled and the child receive s the benefit recognized in our law that it is in the best interest
of the child to have a conti nuing relationship with both pare nts.” 144 Idaho at __, 167 P.3d at 764. The Court required that the mo ther return the child to Idaho, noting that the father’s rights had been prejudiced by the mother’s crime of absconding with the child and misconduct by filing a false domestic violence report. Id . This Court refused to allow a parent to commit a crime, tell falsehoods and gain advantages from that misconduct. Id

. The case before this Court is readily distinguishable from Hopper . First, Kenneth pleaded guilty to domestic battery; Rhonda did not falsely report that he had committed such an act. Moreover, it is questionable whether it wa s criminal for Rhonda to leave for Oregon with Sylvia, as a valid defense to custodial interf erence—leaving to protect herself and Sylvia— appears to exist. See I.C. § 18-4506(2)(a)-(b); Hopper , 144 Idaho at __, 167 P.3d at 764.

6 While there is no finding by the magistrate, four unrefuted instances of domestic abuse, one of which resulted in Kenneth pleading guilty to domestic battery, could lead to the conclusion that he is a habitual perpetrator of domestic abuse.

8Also, a visitation order was en tered less than two months af ter Rhonda and Sylvia moved to Oregon. Kenneth was afforded the opportunity to have frequent and continuing contact with Sylvia, yet he made no effort to contact or visit his child. Once a parent has the opportunity to maintain contact with his child, it becomes hi s responsibility to take advantage of that opportunity. See Navarro , 144 Idaho at __, 173 P.3d at 1148 (Eismann, C.J. concurring). As such, it was error for the magistrate court to fail to analyze Sylvia’s best interest, to refuse to consider the evidence before it, and to determine that Hopper mandated Rhonda and Sylvia return to Boise. The magistrate court should have examined all the evidence to determine Sylvia’s best interest and reached a supported, well-reasoned conclusion before entering its
order. Since the court failed in this duty, it abused its discretion. 3. The magistrate court did not reach its decision through an exercise of reason.
Third, the lack of factual and legal analysis in the magistrate court’s order does not
indicate that it reached its decision through the ex ercise of reason. The or der fails to show that
the court used reason. Ind eed, the general citation to Hopper may show that it believed the decision to grant Kenneth’s motion was ma ndated. However, when making a custody
determination the court must elaborate on all th e factors it considers, including how a move
affects a child’s best interest. See Navarro , 144 Idaho at __, 173 P.3d at 1147. Therefore, because the magistrate court abused its discretion by fail ing to recognize that it had discretion in the matter, by failing to act c onsistently with applicab le legal standards and consistently with the legal standards applicable to the choices before it, and by failing to reach its decision through the exercise of reason, we hold th e magistrate court abused its discretion. Consequently, we reverse the order requiring Rhonda to return to Idaho with her daughter or surrender custody of Sylvia and remand to a different magistrate judge. B. Kenneth is not entitled to attorney fees. Kenneth requests attorney fees pursuant to I.C. § 12-121. Idaho Code § 12-121 authorizes the award of attorneys fees to the prevailing party if the Court is “left with the abiding belief that the appeal was brought or pu rsued frivolously, unrea sonably, and without
foundation.” Wait , 136 Idaho at 799, 41 P.3d at 227. Here, we reverse the magistrate’s order, so Kenneth is not the prevailing party. Theref ore, we decline to award attorney fees.

910 III. CONCLUSION We reverse the magistrate co urt’s order as the lower cour t abused its discretion, and remand to another magistrate j udge for further consideration. We decline to award Kenneth attorney fees. Costs to Appellant. Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.