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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 49072

MARK ADAM WEAVER,

 Petitioner-Respondent,

v.

LISA KAYE WEAVER,

nka LISA KAYE KIDMAN,

 Respondent-Appellant.

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December, 2021 Term

Opinion filed: April 5, 2022

Melanie Gagnepain, Clerk 

Appeal from the Magistrate Court of the Seventh Judicial District of the State of 

Idaho, Bingham County. Scott H. Hansen, Magistrate Judge. 

The magistrate court’s decision is reversed and remanded for further proceedings. 

Banks Gaffney, PLLC, Idaho Falls, for Appellant. Laurie Gaffney argued. 

Smith Woolf Anderson & Wilkinson, PLLC, Idaho Falls, for Respondent. Marty 

Anderson argued.

ZAHN, Justice. 

This is a permissive appeal of a custody determination concerning whether a magistrate 

court abused its discretion in awarding custody to one parent nearly every weekend. For the reasons 

discussed below, we reverse and remand for further proceedings. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts in this matter are undisputed. Lisa Weaver and Mark Weaver married on March 

23, 2016.1 The parties have one minor child, A.W., born January 1, 2017. On November 25, 2020, 

Mark filed for divorce. Lisa responded on December 23, 2020, and filed an amended response and 

counterclaim on February 11, 2021. 

Neither party filed for temporary orders during the case. The parties agreed between

themselves to split physical custody of A.W. on a roughly 60/40 basis, with Mark having three out 

1 As the parties share the same last name, we will refer to them using their first names. 
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of every four weekends. The record indicates that Lisa also allowed Mark additional custodial time 

at his request.

Mark’s official work schedule is Monday through Friday from 8:00 a.m. to 5:00 p.m. 

However, Mark’s supervisor allows him flexibility to arrive at work later on Monday mornings 

when he is caring for A.W., so long as he makes up those hours during the week. Lisa works 

approximately twenty to twenty-five hours per week from home and has “complete flexibility” to

tailor her hours to suit A.W.’s schedule. She anticipates that she may work up to thirty hours per 

week in the future. 

At the time of trial, A.W. attended preschool for two hours per day, two days a week on 

Tuesdays and Thursdays. The parties expect A.W. will begin kindergarten in the fall of 2022, but 

have yet to decide whether A.W. will be homeschooled, attend public school, or attend private 

school. 

Through court-ordered mediation, the parties resolved all issues relating to their divorce

except for “physical custody, visitation, and child support.” The magistrate court held a one-day 

bench trial regarding those issues on May 14, 2021. 

Pertinent to this appeal, Mark requested 50/50 custody, proposing a one week on/one week

off schedule with exchanges on Fridays. Under Mark’s proposal, A.W. would go to daycare on 

weekdays while he worked. Despite the time A.W. would need to spend at daycare, Mark argued 

the 50/50 split would be in A.W.’s best interest because it would allow A.W. to have more time 

with her father and give her more “stability and structure” compared to the temporary custody 

arrangements the parties had been using. 

Lisa, in contrast, requested custody of A.W. on weekdays as well as one weekend out of 

every three. She also stated, however, that she would be fine to keep the parties’ pretrial custody 

arrangement—with Lisa having one out of every four weekends with A.W.—if she had more 

weekend time with A.W. during the summer. Lisa’s major concern with Mark’s proposed custody 

arrangement was the time it would require A.W. to be in daycare when Lisa could provide care for 

A.W. at home.

The magistrate court issued an oral ruling at the conclusion of trial that split physical 

custody of A.W. between the parties on a roughly 60/40 basis. Specifically, the magistrate court 

gave Mark custody beginning Thursday at 6:00 p.m. until Sunday at 6:00 p.m. Lisa received 

custody for the rest of the time, from Sunday at 6:00 p.m. until Thursday at 6:00 p.m. Additionally, 
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the magistrate court provided that each parent would have two, one-week uninterrupted blocks in 

the summer to spend with A.W. Finally, the magistrate court adopted a holiday schedule giving 

Mark and Lisa alternating holiday visitation over spring break, Easter, Independence Day, 

Thanksgiving, and Christmas. The magistrate court’s order did not award Lisa any weekend 

custody aside from weekends that occurred during Lisa’s one-week blocks during the summer or 

holidays that may fall on a weekend. 

In its oral ruling, the magistrate court discussed its preference that the time A.W. spent in 

daycare should be minimized, while the time A.W. spent with each parent should be maximized. 

Further, it noted the benefits the schedule would have for A.W. as she transitioned into 

kindergarten, because A.W. would generally travel to school from Lisa’s house. The magistrate 

court explained that Lisa, who was awarded the final say over where A.W. would attend school, 

“kind of gets to be the school parent to get [A.W.] into school, get her to school, she can go to 

school from the same place, and I think that’ll ultimately help with [A.W.’s] stability.” Finally, the 

magistrate court indicated that its decision did not give either Lisa or Mark exactly what they 

wanted but was what the magistrate court believed to be in A.W.’s best interest. 

Lisa moved the magistrate court for permission to appeal its custody order directly to this 

Court pursuant to I.A.R. 12.1, which the magistrate court granted. Lisa timely appealed.

II. ISSUES ON APPEAL

1. Did the magistrate court abuse its discretion in ordering a division of custody in which one 

parent has custody on almost every weekend?

2. Is Mark entitled to an award of attorney fees on appeal?

III. STANDARD OF REVIEW

For a permissive appeal of a custody issue under Idaho Appellate Rule 12.1, this Court’s 

standard of review is as follows:

[T]he Court reviews the magistrate judge’s decision without the benefit of a district 

court appellate decision. Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329 

(2003). A trial court’s child custody decision will not be overturned absent an abuse 

of discretion. Id. A trial court does not abuse its discretion as long as the court “[1] 

recognizes the issue as one of discretion, [2] acts within the outer limits of its 

discretion . . . [3] [acts] consistently with the legal standards applicable to the 

available choices, and [4] reaches its decision through an exercise of 

reason.” Id. When the trial court’s decisions affect children, the best interests of the 

child is the primary consideration. Id. at 403–04, 64 P.3d at 329–30.
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Lamont v. Lamont, 158 Idaho 353, 356, 347 P.3d 645, 648 (2015). A magistrate court’s decision 

will be affirmed if supported by substantial and competent evidence, even where conflicting 

evidence has been presented. Boe v. Boe, 163 Idaho 922, 929, 422 P.3d 1128, 1135 (2018). 

IV. ANALYSIS

A. The magistrate court abused its discretion in awarding Mark physical custody of A.W. 

on almost every weekend. 

Lisa argues the magistrate court abused its discretion in two respects. First, she contends 

the magistrate court improperly focused on achieving an equal division of time between the 

parents. Second, she argues the magistrate court’s order did not serve the best interest of A.W.

because it created an unfair “fun parent”/ “responsible parent” dichotomy.

Mark, in response, contends that the magistrate court properly considered all the factors 

under Idaho Code section 32-717 and properly exercised its discretion in reaching its custody 

decision. Further, he argues the magistrate court did not improperly focus on equal custodial time 

between the parents because it awarded Lisa fifty-seven percent of the custodial time. Finally, 

Mark contends the magistrate court’s order did not pigeonhole Lisa into being the “responsible 

parent” and Mark the “fun parent” because the custody award gave Lisa weekend time on holidays 

and during two weeks in the summer. He also asserts that the unique circumstances of Lisa’s 

employment gave her the flexibility to spend fun or quality time with A.W. even if those days fell 

on a weekday.

“In Idaho, the child’s best interest is of paramount importance in child custody decisions.” 

Bartosz v. Jones, 146 Idaho 449, 454, 197 P.3d 310, 315 (2008) (citing Hoskinson v. Hoskinson,

139 Idaho 448, 455, 80 P.3d 1049, 1056 (2003)). Idaho Code section 32-717 provides that a trial 

court reaching a custody decision “shall consider all relevant factors” including, but not limited 

to:

(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 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 stability in the life of the child; and

(g) Domestic violence . . . whether or not in the presence of the child
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I.C. § 32-717(1). “The factors listed in Idaho Code section 32-717 are neither mandatory nor

exclusive.” Reed v. Reed, 160 Idaho 772, 777, 379 P.3d 1042, 1047 (2016). “The trial judge has 

wide discretion when weighing these and other relevant factors,” King v. King, 137 Idaho 438, 

444, 50 P.3d 453, 459 (2002) (citation omitted). Given the statute’s directive that the trial court 

“shall consider all relevant factors,” a trial court abuses its discretion if it fails to give appropriate 

consideration to relevant factors. Martinez (Portillo) v. Carrasco (Mendoza), 162 Idaho 336, 345, 

396 P.3d 1218, 1227 (2017) (abuse of discretion to fail to consider relevant factor that custody 

order would require parents to make a 913 mile one-way trip every three weeks). Pertinent here, a 

parent’s work schedule and the necessity for third-party childcare can be relevant factors to 

consider in determining a custody award if they affect the well-being of a child. Silva v. Silva, 142 

Idaho 900, 906, 136 P.3d 371, 377 (Ct. App. 2006). 

Additionally, unless a parent is a habitual perpetrator of domestic violence, there is a 

presumption that joint custody is in the best interests of a child. Lamont, 158 Idaho at 360, 347 

P.3d at 652 (quoting Bartosz, 146 Idaho at 456, 197 P.3d at 317); I.C. § 32-717B(4)–(5). “[J]oint 

physical custody does not mean that each parent is entitled to receive an equal amount of time with 

the children[.]” Peterson v. Peterson, 153 Idaho 318, 321, 281 P.3d 1096, 1099 (2012). Rather, an 

order awarding joint physical custody should afford “each of the parents significant periods of 

time in which a child resides with or is under the care and supervision of each of the parents.” I.C. 

§ 32-717B(2). 

We review the magistrate court’s custody decision under an abuse of direction standard, 

asking whether “the trial court: (1) correctly perceived the issue as one of discretion; (2) acted 

within the outer boundaries of its discretion; (3) acted consistently with the legal standards 

applicable to the specific choices available to it; and (4) reached its decision by the exercise of 

reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) (internal citation 

omitted). 

In reaching its custody decision, the magistrate court emphasized two factors—(1) the 

parents’ wishes and (2) the need for continuity and stability in the child’s life. The magistrate court 

recognized that Mark wanted a 50/50 split while Lisa wanted Mark to have custody two out of 

every three weekends with Lisa having the rest of the time. The magistrate court indicated that it 

was “real tempted to do the fifty-fifty custody” but determined that the prospect of A.W. spending 

every other week in daycare would not be in her best interest. However, it did recognize that “there 
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doesn’t seem to be any good reason why Dad shouldn’t have quite a bit of time with [A.W.]” It 

also recognized Lisa’s wish to have weekend time with A.W. but noted that its decision was 

“focus[ed] . . . not on what’s best for Mom or what’s best for Dad but what’s best for the child.” 

Yet, it placed weight on Lisa’s position that A.W.’s time in daycare should be minimized, 

especially when Lisa had the flexibility to provide care for A.W. during the day. The magistrate 

court maintained that its custody order would serve the stability and continuity of A.W.’s life 

because it would facilitate her transition to school and maximize the time she could spend with 

both parents. It also noted that stability and continuity was a “really . . . important” factor in its 

analysis. 

The magistrate court found the other statutory factors to be essentially neutral. Specifically, 

it noted that A.W.’s young age prevented her from articulating her wishes about the custody 

arrangement, but that she loved both parents and desired a good relationship with each. Similarly, 

concerning the character and fitness of the individuals involved, the magistrate court concluded 

that Lisa and Mark were both good parents without criminal records, mental health issues, adverse 

personality traits, or drug and alcohol problems. Regarding A.W.’s adjustment to home, school, 

and community, the magistrate court noted that A.W. was not yet old enough to enter school, but 

indicated that both parents understood the social benefits of preschool and that A.W. would soon 

begin kindergarten. The magistrate court found that domestic violence was not an issue in the 

parties’ relationship. Finally, as to A.W.’s interaction and relationship with her parents, the 

magistrate court determined that both parents interacted well with A.W. and had a good 

relationship with her.

In addition to the statutory factors, the magistrate court also considered the possibility that 

the parties may allow each other visitation during their respective custodial times, especially on 

Fridays when Mark may be working, and Lisa is available to care for A.W. 

Applying the Lunneborg factors to this case, the magistrate court recognized that 

determination of a custody schedule was discretionary, stating it was “called upon to exercise its 

discretion to try to figure out what will ultimately be in the best interest of the child.” Further, the 

magistrate court reached its decision through the exercise of reason because it discussed each of 

the statutory factors and explained the reasons for its custody decision. However, for reasons 

discussed below we hold that the magistrate court did not act within the outer boundaries of its 

discretion and acted inconsistently with applicable legal principles because it did not adequately 
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consider how its custody order would affect A.W.’s interaction and interrelationship with her 

parents. The magistrate court’s order would not further A.W.’s best interests once she started 

kindergarten because it would dramatically reduce the amount of unstructured quality or “free”

time she had with Lisa. 

As the magistrate court’s order relates to custody while A.W. is in preschool, we agree that 

the magistrate court’s order satisfied the Lunneborg factors. The magistrate court carefully 

weighed each factor and reached a reasonable conclusion that provided both Lisa and Mark with 

significant portions of custodial time while also limiting the amount of time A.W. had to spend in 

third-party care. Because of Lisa’s flexible, part-time work schedule, A.W. had unstructured 

quality time with each parent. A.W.’s quality time with Mark occurred on the weekends and her 

quality time with Lisa occurred during the week. A.W. only attended preschool for 2 hours per day 

on Tuesdays and Thursdays. A.W. did not attend preschool on Lisa’s other days, and Lisa’s 

schedule allowed her to structure her work time to have quality time with A.W. during those 

weekdays.

Yet, A.W.’s time in preschool was fleeting as she was slated to start kindergarten in the 

fall of 2022, only a little over a year after the magistrate court’s oral ruling. The magistrate court 

failed to consider how its custody order would affect the interaction and interrelationship of A.W. 

and her parents and specifically how the order would dramatically reduce the amount of 

unstructured quality time A.W. would have with her mother after A.W. started school. Instead, the 

magistrate court focused on its belief that allowing Lisa to be the “school parent” would provide 

A.W. stability:

And the benefit of this schedule that I see for schooling purposes is, I think 

it’s a challenge for a child to have to go back and forth between different parents 

and to go to school from different households because things are a little different, 

but a lot of kids do it and they adapt very well and they do very well.

But the thing I like about this plan is, is that when it’s time for [A.W.] to go 

to school, I think Mom will be in a position to say, “I live in Idaho Falls. I’m going 

to have her go to kindergarten at the school that’s two blocks away. I can get her 

there easily. I can get her home.” I think there’s a big benefit to [A.W.] in having 

that kind of stability and have her going Monday[2] night, when she’s getting ready 

to go to school Monday morning, she’s at home with Mom, she goes to school.

. . . .

2 The context of this discussion suggests the magistrate court’s reference to Monday was a misstatement. We suspect 

he intended to say “Sunday” instead of “Monday.”
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But the benefit of what I have done here that I see is, is that Mom kind of 

gets to be the school parent to get her into school, get her to school, she can go to 

school from the same place, and I think that’ll ultimately help with [A.W.’s] 

stability.

With respect to A.W.’s interaction and interrelationship with her parents, the magistrate 

court merely noted that A.W. interacted well with both Mark and Lisa and shared a good 

relationship with both. The best interests of the child analysis requires more than a bare recitation 

of the current state of the parents’ and child’s relationship. Rather, it requires meaningful analysis 

regarding how the custody schedule ordered would affect that relationship moving forward. Under 

the unique circumstances of this case, the magistrate court did not adequately consider how the 

custody order would significantly reduce A.W.’s quality time with her mother and deprive her 

father of the opportunity to interact with her on school days and how those lost opportunities would 

impact A.W.’s interactions and interrelationship with her parents.

There are several reasons why the custody arrangement would no longer be in A.W.’s best 

interests after she started school. After A.W. starts school, the custody schedule essentially means

Lisa cannot plan any weekend activities with A.W., such as trips to the park, visits with Lisa’s 

friends and family, or other weekend trips. Lisa could request permission from Mark to plan such 

activities, but if Mark declined to allow them Lisa would have no recourse other than to wait for 

her one week visits during the summer or a holiday that included a weekend. The magistrate court’s 

indication that Lisa would be the “school parent,” meant Lisa would be responsible for getting 

A.W. up in the morning, taking her to school, bringing her home from school, ensuring she did 

any homework, and making sure she got to bed early because every night with Lisa would be a 

“school night.” All this would take away from Lisa’s unstructured quality time with A.W. The 

order would be equally harmful to Mark’s interactions and relationship with A.W., depriving him 

of important time to guide A.W. through the various milestones and challenges of school. 

Moreover, the magistrate court recognized that if A.W. went to school in Idaho Falls, she would 

attend school five days per week, meaning A.W. would go to school four days a week from Lisa’s 

home and one day a week from Mark’s. This school schedule seems no less disruptive than the 

one week on/one week off schedule the magistrate court rejected because of the perceived 

challenges with “hav[ing] to go back and forth between different parents and to go to school from 

different households because things are a little different.”
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The transcript of the custody hearing indicates the magistrate viewed “[t]he interaction and 

interrelationship of the child with his or her parents” factor only in terms of the state of A.W.’s 

interactions and interrelationship with her parents, rather than the nature and quality of the 

interactions and interrelationship moving forward. Custody orders are forward-looking, defining 

the future relationship between the parties. Parents interact differently with their children in 

different circumstances. 

When it comes to school, parents may need to encourage, remind, or even cajole their 

children into getting up, getting ready, getting out the door and then later getting their homework 

done. This can put a parent in a more serious, less fun role. Parents can take different approaches 

to encouraging children to be responsible, care for themselves, and meet school obligations. It’s 

important for children to learn how each parent handles these situations.

On weekends, however, when there is no school, parents can plan or even encourage

children to sleep in, stay in their pajamas, not leave the house and watch movies all day, or do 

other fun activities at home. This allows parents to play a fun role with their children and have 

precious interactions that would not occur during the school week. These different types of 

interactions are important to developing and strengthening parent-child relationships and can 

create some of the most enduring memories in a child’s life. Our sister states have also recognized 

the importance of allowing a child quality time with each parent. See In re Marriage of Kessler, 

441 N.E.2d 1221, 1227 (Ill. App. Ct. 1982) (affirming modification of a custody arrangement that 

gave all the weekends to one parent and stating the schedule “prevent[ed] a balanced relationship, 

or recreation time, with the[] mother and new family unit”); Nikolic v. Ingrassia, 850 N.Y.S.2d 

539, 541 (App. Div. 2008) (reversing a child custody order that “award[ed] every weekend, 

holiday, and summer vacation to the mother,” because the order “fail[ed] to take into account the 

importance of the child’s relationship with the father and his extended family by depriving the 

child of contact during times usually reserved for family gatherings and recreation”); DuBois v. 

DuBois, 714 So.2d 308, 310 (Ala. Civ. App. 1998) (holding that a trial court abused its discretion 

in ordering a custody spilt that gave husband custody every weekend because the schedule “would 

not permit the children to spend any quality time with their mother”); McCrery v. McCrery, 138 

N.W.2d 876, 878 (Iowa 1965) (modifying a custody order that gave the mother custody every 

weekend because it “would give the father little free time to spend with his child and restrict [the 

child’s] opportunity for other social contacts”). 
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It is in A.W.’s best interests to interact with each of her parents playing each of these roles. 

We hold the magistrate court abused its discretion because it acted outside the bounds of its 

discretion and misapplied relevant legal standards in failing to adequately consider the statutory 

factor concerning A.W.’s interactions and interrelationships with her parents once A.W. started 

school. 

We do not hold, nor are we implying, that the magistrate court should have adopted either 

parents’ requested custody schedule. To be fair, the magistrate court’s custody decision appeared 

to be influenced by a desire to balance the parents’ competing requests. The best interests of the 

child standard grants a magistrate court discretion to reach a custody decision that serves the best 

interests of a child no matter what the parents have specifically requested. See McGriff v. McGriff, 

140 Idaho 642, 646–47, 99 P.3d 111, 115–16 (2004) (“We have held that a court is not confined 

by the allegations of the petition to modify in seeking out what custody arrangement would be in 

the best interest of the child.”). While the parents’ requests are one factor in that analysis, and 

continuity and stability are another, we hold the magistrate court abused its discretion because it

failed to adequately consider another statutory factor, namely the interactions and interrelationship 

between A.W. and her parents. Accordingly, we reverse the magistrate court’s decision and 

remand the matter for a new custody determination consistent with this opinion.

B. Mark is not entitled to attorney fees on appeal. 

Lisa has not requested fees on appeal. Mark has requested attorney fees on appeal pursuant 

to Idaho Code section 12-121 and I.A.R. 41. He argues that Lisa’s appeal is frivolous, 

unreasonable, and without foundation because she has merely asked this Court to second-guess 

the conclusions reached by the magistrate court. 

Idaho Code section 12-121 permits an award of attorney fees to the prevailing party if “the 

case was brought, pursued or defended frivolously, unreasonably or without foundation.” I.C. § 

12-121. In order to recover attorney fees under 12-121, a party must first prevail on the merits. Id.

Accordingly, we decline Mark’s request for attorney fees on appeal because he is not the prevailing 

party as Lisa has prevailed on the sole issue on appeal. 

V. CONCLUSION

For the foregoing reasons, we reverse the magistrate court’s custody decision and remand 

for further proceedings. The magistrate court abused its discretion because it did not adequately 

consider the best interests of the child factors given the situation once A.W. would start school.
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We decline to award Mark attorney fees on appeal because he is not the prevailing party. Costs on 

appeal are awarded to Lisa pursuant to I.A.R. 40. 

Chief Justice BEVAN and Justices BRODY, STEGNER, and MOELLER CONCUR.