Custody is covered in Iowa Code Section 598.41. The court’s trend is towards joint custody of children to both parents with physical care to one parent and liberal visitation to the other parent. A general overview of Child Custody in Iowa is available on the Iowa Judicial page.
Joint Custody:
(often called legal custody, but is NOT THE SAME as joint physical care) is favored by the courts if it is in the child’s best interest. In re Purscell, 544 N.W.2d 466, 468 (Iowa App. 1995). In any custody determination, the primary consideration is the best interests of the children. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
“Rights and responsibilities of joint legal custody include, but are not limited to, equal participation in decisions affecting the child’s legal status, medical care, education, extracurricular activities, and religious instruction.” Iowa Code section 598.1(3).
With Joint custody, both parents have access to the child’s information including medical, educational, law enforcement records, and both parents have equal participation in decisions affecting the child. Sole custody is only granted when there is clear and convincing evidence that joint custody is unreasonable and is not in the child’s best interest. In this case, the legal relationship between the parent and child is severed. A history of domestic abuse or lack of support by the parent can overcome the preference for joint custody. A parent’s inability to communicate can also overcome the preference.
Factors for Joint Custody
Factors to be considered in joint or sole custody (Iowa Code Section 598.41(3)). These factors bear upon the "first and governing consideration" as to what will be in the best long-term interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984).
1. Whether each parent would be a suitable custodian for the child;
2. Whether the physiological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents;
3. Whether the parents can communicate with each other regarding the child’s needs; “Although cooperation and communication are essential in joint custody, tension between the parents is not alone sufficient to demonstrate it will not work.” Bolin, 336 N.W.2d at 446; see In re Marriage of Stafford, 386 N.W.2d 118, 121 (Iowa Ct. App. 1986); In re Marriage of Ertmann, 376 N.W.2d 918, 920 (Iowa Ct. App. 1985). The parties’ inability to communicate and cooperate must rise above the “usual acrimony that accompanies a divorce.” Ertmann, 376 N.W.2d at 920. In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992) (stating the denial by one parent of the child’s opportunity to have meaningful contact with the other parent is a significant factor in determining custody or physical care).
4. Whether both parents have actively cared for the child before and since separation;
5. Whether each parent can support the other parent’s relationship with the child; Under Iowa Code chapter 598.41(1)(c) (2007), the denial by one parent of the children’s opportunity to have meaningful contact with the other parent is a significant factor in determining the custody or physical care arrangement. See In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992); In re Marriage of Barry, 588 N.W.2d 711, 713 (Iowa Ct. App. 1998). The court must consider the willingness of each party to allow the children access to the other party. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996). A custodial parent’s lack of cooperation with the noncustodial parent’s visitation and communication with the children may be considered a substantial change in circumstances warranting a modification of the dissolution decree. See In re Marriage of Downing, 432 N.W.2d 692, 694 (Iowa Ct. App. 1988); In re Marriage of Grabill, 414 N.W.2d 852, 853 (Iowa Ct. App. 1987)…
6. Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity;
7. Whether one or both parents agree or are opposed to joint custody;
8. The geographic proximity of the parents;
9. Whether the safety of the child, other children or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation;
10. Whether a history of domestic abuse exists;
a. A determination of domestic abuse outweighs any other factor in awarding custody.
b. Protective orders, Actions under the Domestic Abuse Act, contempt of a protective order, response of police, arrests or conviction of domestic abuse are considerations.
If the district court does not grant joint legal custody, the court must cite clear and convincing evidence, according to the enumerated factors listed above, that joint legal custody is unreasonable and not in the children’s best interests “to the extent that the legal custodial relationship between the child and a parent should be severed.” Iowa Code § 598.41(3), § 598.41(2)(b).
Domestic Abuse
Evidence of untreated domestic battering should be given considerable weight in determining the primary caretaker, and under some circumstances even foreclose an award of primary care to a spouse who batters. In re Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa App. 1997). There is a presumption against an award of joint custody upon a finding of domestic abuse. In re marriage of Brainard, 523 N.W.2d 611, 614-15. Domestic abuse is, in every respect, dramatically opposed to a child's best interests. Daniels, 568 N.W.2d at 55. There are tragic and long-term consequences of spousal abuse on children who witness the violence. Brainard, 523 N.W.2d at 614-15. Spousal abuse reveals a serious character flaw in the batterer, and an equally serious flaw in parenting. Daniels, 568 N.W.2d at 55. Additionally domestic abuse is a crime. Iowa Code 708.2A (2009).
A history of domestic abuse is not necessarily established by a single incident, nor does a history of more than one minor incident establish a history of domestic abuse. In the Marriage of Forbes, 570 N.W.2d 757 (Iowa app. 1997). It is up to the court to weigh the evidence of domestic abuse, its nature, severity, repetition, and to whom directed, not just to be a counter of numbers. Id. Even so, a history of domestic abuse merely creates a rebuttable presumption against joint custody. Iowa Code 598.41(1)(b), (2)(c). Additionally, in a mutually aggressive relationship, a claim of domestic violence must not be used by one party to gain an advantage of trial, but is reserved for its intended purpose, to protect victims from their aggressors. In re Marriage of Barry, 588 N.W.2d 711 (Iowa App. 1998).
Gender
Gender of the person seeking custody or physical care of the child is irrelevant. The issue is which parent will do better in raising the child. Sexual orientation is not a factor to deny custody or visitation, and marriage or unmarried parents is not a consideration. However, if the parents are unable to cooperate this can preclude joint custody.
Physical Care:
(often called physical custody):
“Physical care means the right and responsibility to maintain a home for the minor child and provide for the routine care of the child.” Iowa Code Section 598.1(7). “Physical care issues are not to be resolved based upon perceived fairness to the spouses, but primarily upon what is best for the child.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). “The objective of a physical care determination is to place the [child] in the environment most likely to bring [him] to health, both physically and mentally, and to social maturity.” Id.
With respect to the issue of physical placement of the child, the governing consideration is the best interests of the child. In re Marriage of Ihle, 477 N.W.2d 64, 69 (Iowa App. 1988).
Our courts have held successful care giving by one parent in the past is a strong predictor that the future care by that parent will be of the same quality. See In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). However, the fact that a parent was the primary caretaker of a child previously does not assure that he or she will be awarded primary physical care. In re Marriage of Kunkel, 546 N.W.2d 634, 635 (Iowa Ct. App. 1996) (recognizing the mother was the primary care giver of the children in the marriage, but also recognizing the father, though employed outside the home, had substantial influence in their upbringing and awarding him care). The fact a parent was the primary caretaker prior to separation does not assure he or she will be the custodial parent. Id.; see also In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991) (affirming physical care with father despite mother’s role as primary caretaker); Neubauer v. Newcomb, 423 N.W.2d 26, 27-28 (Iowa Ct. App. 1988) (awarding custody of a child who had been in the mother’s primary care for most of the child’s life to the father). While the primary caretaker is frequently named the primary custodian, it is the interest of the child that is the first and governing consideration and we look to all the factors the court is directed to consider in awarding custody that are enumerated in Iowa Code section 598.41(3) (2007), in In re Marriage of Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983), and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).
The district court “shall consider the denial by one parent of the [children’s] opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement.” Id. § 598.41(1)(c); see In re Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983) (“When one parent’s obduracy makes joint custody unworkable, the trial court in a modification proceeding may find the child’s best interests require sole custody in the other parent.”).
All factors bear on the “first and governing consideration,” the court’s determination of what will be in the long-term interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the child is which parent will do better in raising the child. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct. App. 1985). Gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding. In re Marriage of Riddle, 500 N.W.2d 718, 719 (Iowa Ct. App. 1993).
“[A] court, insofar as is reasonable and in the best interest of the child, [is to] order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parties have separated…and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm of the child, other children, or a parent is likely to result from such contact with one parent.” Iowa Code section 598.41(1)(a).
Joint Physical Care
Joint physical care is not preferred in Iowa, but can be granted if both parents request. Joint physical care is sometimes referred to as shared custody, or mistakenly as joint custody. Joint physical care is a roughly equal division of physical care between the two spouses, as opposed to one spouse being granted sole physical care and the other parent visitation. See Iowa Code § 598.1(4) (2007) (stating with joint physical care, “both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, [and] providing routine care for the child”).
“Factors often of importance in determining the viability of joint physical care include an overriding interest in stability and continuity, the degree of communication and mutual respect, the degree of discord and conflict prior to the dissolution, and the extent to which the parties agree on matters involving routine care.” In re Marriage of Hansen, 733 N.W.2d 683,700 (Iowa 2007). “Stability and continuity concepts have been refined in the recent literature and expressed in terms of an approximation rule, namely that the care giving of parents in the post-divorce world should be in rough proportion to that which predated the dissolution.” Id. at 697.
Where, as here, “one spouse has been the primary caregiver, the likelihood that joint physical care may be disruptive on the emotional development of the [child] increases.” In re Marriage of Hansen, 733 N.W.2d 683, 698 (Iowa 2007).
Joint physical care “does not require that the residential arrangements be determined with mathematical precision.” See In re Seay, 746 N.W.2d 833, 836 (Iowa 2008); see also In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007) (“Joint physical care anticipates that parents will have equal, or roughly equal, residential time with the child.” (emphasis added)
“When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights.” See also In re Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007) (“Visitation rights are ordinarily afforded a parent who is not the primary caretaker.”). On the other hand, when joint physical care is warranted, “both parents are awarded physical care of the child.” Hynick, 727 N.W.2d at 579. This means both parents have physical care rights and responsibilities toward the child, including the right to maintain a home for the child and “determine the myriad of details associated with routine living.” Hansen, 733 N.W.2d at 691; see also Iowa Code § 598.1(4). “[N]either parent has physical care rights superior to those of the other parent” in such an arrangement. Iowa Code § 598.1(4). It therefore appears that when joint physical care is granted, each parent has something more than visitation during their residential time with the child. In the Marriage of Brown, 9-413/08-0366 (Iowa App. 2009). A change in the parenting schedule in a joint physical care case is more akin to a change in visitation than a change in custody. Nauditt v. Haddock, 882 So. 2d 364, 367 (Ala. Civ. App. 2003) (reaching similar conclusion). Brown.
Sole Physical Care
Generally physical care is awarded to one parent with liberal visitation to the other parent. Placement is made according to which parent can minister more effectively to the children's long term best interests. In re Marriage of Buttrey, 538 N.W.2d 322, 324 (Iowa App. 1995) (citing In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). the Court's objective is to place the children in the environment most likely to bring them to a healthy physical, mental, and social maturity. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa App. 1996). The critical issue in determining the best interests of the child is which parent will do better in raising the child; gender is irrelevant, and neither parent should have a greater burden than the other. in re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa App. 1996). The parent awarded visitation is responsible for providing child support. Generally siblings are placed together.
Factors
In making decisions regarding the child’s physical care, the Court is required to focus on the best interest of the child; the purpose of the physical care order is not to reward or punish either parent. The Court is to consider the statutory factors set forth in Iowa Code Section 598.43(3) as well as the factors identified in In Re Marriage of Winter, 223 N.W.2d 165,166-67 (Iowa 1974):
Factors to be considered in awarding physical care:
1. The characteristics of each child, including age, maturity, mental and physical health;
2. The emotional, social, moral, material, and educational needs of the child;
3. The characteristics of each parent, including age, character, stability, mental and physical health;
4. The capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child;
5. The interpersonal relationship between the child and its siblings. [Siblings including half siblings should be kept together absent good and compelling reason to separate them. In re Marriage of Quirk-Edwards, 509 N.W.2d 476,479 (Iowa 1993); See In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994) (“Siblings should not be separated from one another without good and compelling reasons.”); Will, 498 N.W.2d at 398 (there is a presumption that siblings should not be separated in the absence of good and compelling reasons).
6. The interpersonal relationship between the child and each parent;
7. The effect on the child of continuing or disrupting an existing custodial status;
8. The nature of each proposed environment, including its stability and wholesomeness;
9. The preference of the child, if the child is of sufficient age and maturity considering
a. The child’s age and educational level
b. Strength of preference
c. Relationship with family members, and
d. Reasons given for child’s decision.
e. Whether the action is an original custody proceeding or a modification action. In re Marriage of Levsen, 510 N.W.2d 892, 894 (Iowa 1993); In re Marriage of Hunt, 476 N.W.2d 99, 101-02 (Iowa 1991).
10. The report and recommendation of the attorney for the child or other independent investigator;
11. Available alternatives; and
12. Any other relevant matter the evidence in a particular case may disclose. [including factors of continuity, stability, and approximation (In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007)) and whether one of the parties has without just cause denied the child the opportunity for maximum continuing contact with the other parent (Iowa Code section 598.41(1)(c)).]
Moral misconduct has also been considered a factor, however, it has been weighed most heavily only in those cases where the misconduct was conducted in the presence of the children. See In re Marriage of Grandinetti, 342 N.W.2d 876, 879 (Iowa App. 1983).
The emotional and environmental stability offered by each parent are important considerations. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa App. 1998).
The parent awarded physical care is required to support the other parent’s relationship with the child. Hansen at 700; Iowa Code section 598.41(5)(b).
A child should be assured the opportunity for the maximum continuing physical and emotional contact with both parents. In re Marriage of Ruden, 509 N.W.2d 494,496 (Iowa App. 1993).
Choice of Child at Age 14
There is a common rumor that upon reaching the age of 14, a child can choose where he/she wants to live. In a modification proceeding, a child’s preference is given less weight than in the initial custody proceeding. Many other factors are also considered.
Preference to Mother?
There is no longer an inference that the best interests of younger children are better served by granting physical care to the mother. Primary care experience is carefully considered, but primary care experience does not necessarily mean that parent will be awarded physical care.
Military Deployment
Physical care has been modified when the parent with physical care has been deployed in the military even though the parent wanted the children to stay with the grandparents until he returned.
Visitation
Unless visitation will result in harm to the child, it is not prohibited. Liberal visitation is considered to be in the best interests of the child. However, criminal history of the parent is considered if the parent has been convicted of a crime against a minor, and if the parent murdered the other parent, visitation may not be awarded to the murderer. Conditions can be placed on visitation if the conditions are in the best interests of the child.
Visitation can be ordered between children, but otherwise the court cannot order visitation with a non-parent (such as a grandparent) over the parent’s objections unless the rebuttable presumption that a fit parent’s decision to deny visitation is overcome. Grandparents' visitation is summarized on the Iowa Judicial page. Grandparents’ visitation can be awarded if the court finds:
1. The grandparent established a substantial relationship with the child prior to the petition filing.
2. The parent is unfit to make the decision regarding visitation
3. It is in the child’s best interests to grant visitation.
Constitutional Right
A parent’s interest in the care, custody, and control of their children is a fundamental liberty interest (constitutional right), and this interest needs to be overcome by proving the above.
Parenting Plans
Several of the factors for physical care refer to the developmental needs of the child, the parenting capacity of the parents, the level of risk of endangerment when the child is with either parent, and the emotional environment in either home. These factors should be reflected in the development of any parenting time plans.
If the parents have only minimal or mild levels of conflict, the plan should be developed based on the developmental needs of the child. “Caught in the Middle: Protecting the Children of High-Conflict Divorce” by Garrity and Baris (1994). Greater levels of conflict between the parents require a well-structured detailed parenting plan, with a minimum number of transitions between the parents. If the conflict is severe and the child is at risk for abuse or exposure to parental substance abuse or severe pathology, supervised parenting time may be the only alternative, with children of “high-risk parents” (history of abuse, substance abuse, impulse control issues) requiring long periods of supervised parenting time. Each parent should be evaluated as to their ability to:
1. Control their impulses
2. Solve problems
3. Empathize with the children and understand their needs
4. Create a safe environment
Based on conflict and age of the children, appropriate parenting time plans can be developed. “Creating Effective Parenting Plans: A Developmental Approach for Lawyers and Divorce Professionals”, Hartson and Payne (2006).
Infant to Two Years Old
Moderate Level of Conflict between parents: Daily visits possible if held in neutral environment. Two-at-home parenting times per week, provided parents adhere to minimal verbal exchanges (contact time of 2-3 hours).
Moderately Severe Level of Conflict: No at-home parenting time; supervised parenting time (2-3 hours); evaluation mandatory before allowing unsupervised time; full evaluation of both parents related to impulse control, problem-solving ability, empathizing with child, and maintaining safe environment.
Severe Level of Conflict: Supervised parenting time only.
Two to Five Year Old
Moderate Level of Conflict: Minimize transitions in neutral area; Attempt to begin with one time per week of 24 hours. One overnight initially, moving to 3 day/2 night block toward end of this stage.
Moderately Severe: Supervised parenting time only until comprehensive assessment of parents and child completed. Frequency of time based on case-by-case basis taking into account child’s reaction to parenting time (use “normal” parenting time plan as guideline).
Severe: Supervised parenting time only.
Six to 11 Year Old
Moderate: Minimize transitions, using neutral transition places such as school. Distribute parenting time into one block per week for younger child. For older children, use and negotiate a block schedule. Therapy considered if child refusing parenting time or strongly taking sides.
Moderately Severe: Supervised parenting-time only until evaluation of both parents and children completed. Frequency of time determined on case-to-case basis taking into account child’s feelings (i.e. not expressing fear of parenting time). (Use “normal” parenting time as guideline).
Severe: Supervised parenting-time only.
Twelve to eighteen Year Old
Moderate: Minimize transitions. Split parenting time into longer blocks. Transition in neutral area.
Moderately Severe: Supervised parenting time until comprehensive assessment of both parents and children completed. When adolescent is aware of endangering situation, is capable of living independently, and is expressing desire to unsupervised time, those details should be considered. Frequency of time based on case-by-case basis, taking into account adolescent’s feelings (follow “normal” parenting time guidelines).
Severe: Supervised parenting time only.
Checklist for Batterers in Custody and Visitation
Specific guidelines must be provided regarding expectations, requirements, and consequences. Items to be included in the plan should include:
1. Exact days and times children will be with each parent.
2. Exact time and location for pick up and drop off, with a specified short grace period.
3. Custody or visitation provisions for holidays, vacations, and special occasions
4. Minimize the number of transfers between parents
5. Specify how to avoid in-person contact between the parents during the exchange
6. Specify that in-person exchanges are to be made in a designated, public place.
7. Specify how parents will avoid attendance of both parents at school, unless they are specified major life events.
8. Identify how to determine which events each parent will attend (alternating days, weeks, odd/even, etc.)
9. Specify that child shall have the ability to attend activities that are important to the child, regardless of which parent the child is with at the time of the activity.
10. Provide specified time for notice to one parent when the other parent moves to a new location, and consequences of failure to notify.
11. Specify whether a parent can move outside a particular school district and still have visitation during the school year (or make the parent prove that the move is in the child's best interests).
12. Specify whether specific programming is required of either parent (substance abuse evaluation/treatment, BEP, counselling, etc.) including time frame to complete and consequences for failure to complete.
13. Specify whether one parent can communicate information about the child to the other parent, in the presence of the child
14. Prohibit one parent from communicating with the other parent through the child and specify consequences for failure
15. Specify whether parents can communicate at all, and if so, how communication will occur
16. Specify how the child will be expected to communicate with the parent when the child is at the other parent's home
17. Specify which parent has decision-making authority for the child, or how decision making authority will be split (and if possible avoid joint decision making.)
18. specify the degree of flexibility in the visitation plan and the consequences for failure to comply
19. Specify whether the child can or cannot take toys and other personal items from one parent's home to the other parent's home, how items left behind will be returned to the child, and who is responsible for replacement of items
20. Specify what happens when a child is ill at the time visitation is scheduled to occur
21. Specify any special needs of the child (e.g. medication, braces, etc.) and require each parent to provide a specific plan as to how to meet those special needs, as well as consequences for failure to meet those needs.
22. Specify how disputes will be resolved (contempt of court, mediation, modification request, etc.), including payment of costs
23. Specify how the child's injuries will be documented and how notice to the other parent of the injury will be accomplished
24. Specify who is responsible for health care costs and who can have access to health care records
25. Specify who can communicate with school officials and who can have access to school records.
26. Specify who can communicate with the child's counselor and who can have access to the counseling records
27. Prohibit one parent from communicating disrespect of the other parent (or parent's new partner) to the children and set out consequences
28. When supervised visitation is ordered:
a. Specify the time, place and location of the supervised visitation
b. Specify how the custody exchange will be accomplished
c. Specify who wll conduct the supervised visitation and what expectations will apply to the visitation
d. Specify whether records of the supervised visitation will be kept, who keeps the records, who has access to the records, and whether the records will be deemed discoverable or admissible in court under certain circumstances
e. Specify whether persons conducting the supervised visitation will be required to testify or to make recommendations regarding unsupervised visitation.