Have you encountered any co-occurring child custody and Child Protection Act (CPA)[i] cases? Or have you considered taking a CPA case through the conflict division of the State Public Defender’s office? Although both types of cases look out for children, they are different in nature and process. Even so, when they are co-occurring, it is often helpful for the same attorney to handle both.

I will start by exploring the primary issue, keeping the information from each case separate as the activity in the cases may not be freely used even though the parties are the same. Next, I will discuss how child protection cases are not concerned with custody decisions, although their actions may either assist or interfere with custody cases. I will conclude with the benefits of handling both, followed by pointers for handling your first CPA case.

Child Protective Act Cases Are Exempt from Public Disclosure

An important cautionary note: all CPA cases are closed hearings and the records are exempt from public disclosure according to Idaho Juvenile Rule 53.[ii]

Idaho Code § 16-1626 limits who the CPA records may be released to: parties, any other individuals with custodial rights to the subject child, and agencies providing protective supervision or legal custody, generally the Department of Health and Welfare—except by specific court authorization.[iii] 

Rule 32 of the Idaho Court Administrative Rules (governs all proceedings open to the public). In general, “[t]he public has a right to access the judicial department’s declaration of law and public policy, and to access the records of all proceedings open to the public.” [iv] Rule 32(g) lists 29 types of records that are excluded from public disclosure, generally due to their sensitive nature. If a public records custodian willfully or intentionally discloses these records, it may be treated as a contempt of court.[v] Consistent with I.C. § 16-1626, CPA cases are on this list.[vi]

Nevertheless, Rule 32 (c) states the rule “shall not prevent examination, inspection and copying of records otherwise exempt from disclosure” in certain situations, specifically authorizing parties to release their own court filings.[vii]

The explicit language of Rule 32 not only permits parties to access their own records, but also expressly recognizes the parties right to release those records to third parties.  Rule 32 places no restrictions as to whom the parties may authorize release of these records to, unless the Court issues a special order otherwise. Thus, it seems that a party to the case—your client in a CPA case—has the right to authorize the release of their child protection documents to be presented and utilized during their child custody case. 

I have observed a final child protection report in a case[viii] written with the expectation that the judge in the child custody action would utilize it to effectuate a modification to the custody order.

Because the issue is not explicitly spelled out, not all judges interpret it this way. I have also experienced a judge interpreting Rule 32 to forbid such cross-over use of a child protection report. As I could find no Idaho Supreme Court decisions on point, it seems this rule could be clarified as to whether parties may or may not use records from their own CPA cases. Clarification would allow for consistency, clear expectations, and no unpleasant surprises.

Keep Child Protection Information Separate

Because CPA cases are exempt from disclosure, some judges will not allow the information in CPA cases to be freely shared with the custody case. Rule 32 appears to allow the parties to choose to share reports from their CPA case with the custody case, but some judges treat records that are exempt from disclosure the same as a sealed case. I have experienced having evidence in a CPA case sealed where the client could only view it in my office. This allowed access to the evidence but required care not to apply it in the custody case.

This applies similarly to information gained through mediation. Information learned in mediation cannot be directly used in court, but it can prompt and direct discovery and investigation to learn and verify this information another way. Likewise, evidence in CPA cases may not be directly used in the custody case but must be separately obtained for use in the custody case.

For instance, forensic interviews from a Children’s Advocacy Center might be evidence in a CPA case. Those are very sensitive and often may not be used in the custody case, despite being very relevant. However, witnesses in the custody case who know the information may testify to what they had learned, observed, or witnessed.

Another way to bring restricted information from a CPA case into a custody case is to ask for an Idaho Code § 32-717C investigation. These must be ordered whenever there are allegations of child physical or sexual abuse. Child Protective Services (CPS) within the Idaho Department of Health and Welfare will conduct a thorough investigation, write a report, and file it with the court directly into the custody case, making that information available.

Child Protective Services Is Not About Custody

CPS does not resolve custody. Their aim is to ensure that the children are safe. As soon as CPS determines that a parent with joint legal and physical custody rights to the child is an appropriate and protective parent that the children are safe with, they will move the court to close the case. This will happen even if child custody is not finally determined by a court order in a child custody case. 

Further, unless there is a clearly identified non-offending parent when a CPA case is open, most activity in a custody case is paused while the court waits to see what transpires in the CPA case. A temporary custody order is sufficient to prompt CPS to move to close a CPA case, which then leaves the custody trial to solidify the children’s safety and best interests unheard until after the completion of the CPA case. If the custody trial then arrives at different conclusions, the children could still be in danger.

The final report in a CPA case,[ix] if the judge in the custody case allows it to be admitted, can greatly assist in obtaining an order of sole custody. That report is a thorough assessment of each parent and the children’s safety with each parent, providing valuable information from a neutral third party.

Benefits of Handling Both Cases

Because there is significant overlap in child custody and CPA cases, handling both cases can save time; the work need not be duplicated and there do not need to be conversations between the attorneys. Handling both cases provides the attorney with full knowledge of everything occurring on both sides, allowing for optimal representation of a client—similar to handling a criminal case (either defending an accused or providing crime victim representation) along with a custody case. This deeper understanding of the cases and the issues presented in each lead to better representation and fewer surprises.

Creation of CPA Cases

Sometimes in contentious custody cases, one party will call CPS on the other party; or both parties will call in reports of abuse. This may be done to harass the other parent or in an attempt to help their custody case. Such behavior is not helpful but rather is frowned upon. It is better practice for the attorney to alert the custody judge to the allegations of abuse and request an I.C. §3 2-717C investigation. Then, if the concerns are substantiated, a CPA case will be opened.  This avoids harassment, increased suspicion between the parties, and results in the investigation findings being freely usable in the custody case.

Taking Your First CPA Case

In the early stages of a CPA case, the Idaho Department of Health and Welfare (IDHW) is represented by the county prosecutor. Within thirty days, an Adjudicatory Hearing is held to determine whether the court has jurisdiction over the child in question and whether there is clear and convincing evidence that a child is neglected, abused, abandoned, homeless, or lacks a stable home environment. [x] At the completion of the Adjudicatory Hearing, if continuation of the case is warranted, then in some parts of the state, a Deputy Attorney General will substitute in to represent IDHW.[xi] Thus, the CPA workers are represented by an attorney and you cannot speak to them directly about the case, even though your client may.

If your client is the protective parent, they may welcome the involvement of CPS. Nevertheless, it is still necessary to ensure the proposed case plan is achievable and provides adequate support from IDHW. It is also important to monitor your client’s relationship with IDHW to ensure they do not switch to pursuing your client. Be sure that a good relationship at the beginning is maintained. 

If your client is accused of harming the children, representing them in both cases can give you notice of what allegations are likely to be brought in the custody case. Successfully working a case plan can help mitigate the situation on the custody side.

An excellent resource for learning what to expect are the bench cards for Child Protection cases.[xii] Another resource is the Child Protection Manual: A Practical Guide for Judges and Attorneys.[xiii] Both resources are freely accessible online.

Ideas for Improvement

Given the significant overlap of material between CPA and custody cases, it would be optimal if the same judge handled both cases and if judges would consistently take judicial notice of CPS reports. The cases can progress efficiently if the parties are free to use their own CPS reports in their other case. CPS workers are neutral parties working intimately with a troubled family, and when there is also a custody dispute in that family, it would be helpful if CPS could make explicit recommendations regarding custody based on their experience with the parents.

Conclusion

Representing a client in a CPA case concurrently with their custody case can be highly rewarding and offers a more comprehensive understanding of the family dynamics, thereby enhancing the quality of representation in both matters. However, care must be taken when applying information obtained in one case directly to the other. Such information should instead be used to guide investigation, witness preparation, or to support a request for an I.C. § 32-717C investigative report.

Tyrie Strong earned her J.D. magna cum laude from Gonzaga University in 2021. She practiced at Idaho Legal Aid before founding her own firm, Strong Family Law, in Coeur d’Alene at the start of 2025. In 2024, she received the Idaho State Bar Public Service Award and currently serves on the board of the Family Law Section.

[i] Child Custody cases address parenting time and child support between the child’s parents, based on the Best Interests of the Child, whereas Child Protection Act (CPA cases) are opened by the state against the parents when a call to Child Protection Services is substantiated.  CPA cases focus on the safety of the child, offering services to both parents to grow into safe parents, or, if they do not complete their case plan, will proceed to a trial for the termination of parental rights.

[ii]  “A court shall not disclose any of the contents of a case file of any action brought under … the Child Protective Act, nor other records of such proceedings, except as authorized under Rule 32 of the Idaho Court Administrative Rules…”  (IJR 53).

[iii] “…The records shall be available only to parties to the proceeding, persons having full or partial custody of the subject child and authorized agencies providing protective supervision or having legal custody of the child. Any other person may have access to the records only upon permission by the court and then only if it is shown that such access is in the best interests of the child; or for the purpose of legitimate research.…” (ISC § 16-1626.)

[iv] Idaho Ct. Admin. R. 32 (a).

[v] Idaho Ct. Admin. R. 32 (g).

[vi] Idaho Ct. Admin. R. 32 (g) (9) (A).

[vii] Idaho Ct. Admin. R. 32 (c) assures us that the rule “shall not prevent examination, inspection and copying of records otherwise exempt from disclosure by the following persons in the following situations” and situation (2) is:

Parties to an action and their attorneys accessing the court file of the action, unless restricted by order of the court. However, parties to an action and their attorneys may not access records identified in paragraphs (g)(3), (4), (5), (15), and (17)(F) that were filed by another party, unless permitted by court order. Parties may authorize release of their own court filings directly to a third party.

[viii] The Department of Health & Welfare file review reports on the parents’ progress and children’s well-being before each review hearing, typically about two months apart.   The final report that recommends case dismissal (unless the case is going to termination) summarizes the entire proceedings, and why the children are now safe. 

[ix] See footnote 8, supra.

[x] I.C. § 16-1619.

[xi] In some areas, the Deputy Attorney General (“DAG”) substitutes in after Adjudication; in others, only if there is a trial for a Petition to Terminate Parental Rights; and in others, the prosecutor’s office handles the entirety of CPA cases.

[xii] https://isc.idaho.gov/BenchCards. 

[xiii] https://isc.idaho.gov/cp/benchcards/2018/Child_Protection_Manual_2018.pdf