In Iowa, the district court retains subject matter jurisdiction to modify orders regarding child custody, visitation, child support, and alimony, but generally property modification is not modifiable.
In Iowa, to modify a family law decree, there must be a
substantial change in circumstances. This change must be
permanent and continuous rather than temporary, and must
not have been within the contemplation of the district court at the time of the original decree. Continued enforcement of the original decree would result in positive wrong or injustice.
Statutory factors for Modifying Dissolution include:
1. Changes in employment, earning capacity, income, or resources of a party;
2. Receipt by a party of an inheritance, pension or other gift;
3. Changes in the medical expenses of a party;
4. Changes in the number or needs of dependents of a party;
5. Changes in the physical, mental, or emotional health of a party;
6. Changes in the residence of a party;
7. Remarriage of a party;
8. Possible support of a party by another person;
9. Changes in the physical, emotional,or educational needs of a child whose support is governed by the order;
10. Contempt by a party of existing orders of court;
11. Other factors the court determines to be relevant in an individual case.
Venue for Modification. Venue shall be in the county where either party resides orthe county where the decree was entered.
Alimony Modification:
When a spouse's earning potential is unknown at the time of a decree, subsequently gained knowledge of earning potential may be considered in determining whether there has been a substantial change in circumstances.
If
alimony is not addressed in the original decree, the court cannot modify the decree by adding
alimony.
Property Modification:
Generally
property division is not modifiable unless fraud, duress, coercion, mistake or similar grounds which would support modification of an ordinary judgment are present. The only mechanisms to modify
property division are through appeal or by petitioning the court to vacate the previous judgment.
Child Support Modification:
A substantial change in circumstances occurs when there is a 10% or more increase or decrease in child support according to the
Child Support Guidelines. (Note: this is not a 10% change in income, but a 10% change in
child support based on the change in income.)
To modify an out-of-state custody order, the party must satisfy the requirements of the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Iowa Code Chapter 598B, and the Federal Parental Kidnapping Prevention Act (PKPA) (28 U.S.C.1738A).
If health insurance is now available and the children are not covered by another plan, the
support can be modified.
Retroactive modification of
child support can only occur from 3 months after the date of service of notice of the modification.
The court may order temporary modification of
support while a modification is pending.
A substantial change can also occur when one of the children reaches the age of 18 or is no longer qualified for
child support.
New Income or wealth of new spouse can be considered for modification if the result would otherwise be injustice.
Changes in the health of a spousecan be considered for modification.
Custody and Visitation Modification:
To change the custodial provisions of a decree, the party seeking modification must establish by a preponderance of evidence that conditions since the decree was entered have materially and substantially changed.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
In re Marriage of Walton, 577 N.W.2d 869,870 (Iowa App. 1998). The change must be more or less permanent and related to the welfare of the children.
Id. A “substantial change in circumstances” involves changed conditions which are material as opposed to trivial and permanent or continuous as opposed to temporary.
In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).
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)…
The burden to modify a custody provision is a heavy one.
In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998). The parent seeking to change physical care of the child must prove an ability to minister more effectively to the child’s well being than the current physical care parent can render.
Frederici, 338 N.W.2d at 158.
The parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden and must show the ability to offer superior care.
Malloy, 687 N.W.2d at 113. “This heavy burden stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons.”
In re Marriage of Mikelson, 299 N.W.2d 680, 671 (Iowa 1980).
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The importance of stability in [a child’s] life . . . cannot be overemphasized.”
In re Marriage of Coulter, 502 N.W.2d 168, 171 (Iowa Ct. App. 1993);
see also Hansen, 733 N.W.2d at 696 (discussing the importance of stability and continuity of caregiving in determining custodial arrangements); “changed circumstance rule” applicable to custodial modifications protects and promotes “‘stable custody arrangements,’ which are believed to be in the best interest of the child”).
In re Marriage of Brown, 9-413/08-0366 (Iowa App. 2009) quoting
Enrique M. v. Angelina V., 18 Cal. Rptr. 3d 306, 314 (Cal. Ct. App. 2004).
Custody can be modified if there is a
substantial change in circumstances demonstrated by a preponderance of the evidence and the moving party can
render superior care. A substantial change does not automatically justify a modification of custody.
Temporary custody should not be modified by the filing of a petition to modify child custody, absent necessity.
Factors to be considered in modifying custody include:
1.
Best interests of the children (benchmark issue);
2.
Child's preference (but less weight in modification than in initial custody procedings);
3.
Siblings should not be separated;
4.
Conduct of the custodial parent (including whether the parent encourages and facilitates the child's relationship with the other parent).,including denial of visitation or contact.
5.
Stability for the Child.
Not considered is the punishing or rewarding parents or parent's remarriage . Custody should be quickly fixed and disturbed as little as possible.
Relocation: Court may consider a relocation of 150 miles or more as a substantial change.
Visitation: A different, less demanding burden applies when a parent is seeking to change a visitation provision in a dissolution decree than for changing custody.
See In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). That standard “follows the criteria used in actions to modify child custody, except a much less extensive change in circumstances is generally required in visitation cases.”
In re Marriage of Salmon, 519 N.W.2d 94, 96 (Iowa Ct. App. 1994). A parent seeking to modify visitation must only establish “that there has been a
material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children.”
Id. at 95-96 (emphasis added).
“Unlike a change in custody, an alteration in a parenting or visitation schedule does not cause a disruption in ‘established patterns of care and emotional bonds with the primary caretaker.’”
Brown quoting
In re Marriage of Lucio, 74 Cal. Rptr. 3d 803, 811 (Cal. Ct. App. 2008). In addition, “factors such as the physical location of a child during a particular weekend or holiday . . . are more likely to require change over time than the status of the child’s residential parent and legal custodian.”
Brown quoting
Fisher v. Hasenjager, 876 N.E.2d 546, 554 (Ohio 2007). Thus there is a less demanding burden of proof to modifications of visitation, especially in light of the well-established principle that the best interests of children are ordinarily fostered by a continuing association with both parents. Iowa Code § 598.41(1)(a);
see also Salmon, 519 N.W.2d at 96.
_____________________________________________
Disclaimers: Information on this web site can not be construed as legal advice, and you are advised to seek legal counsel and not rely on this or any other website. Use of this web site does not create an attorney/client relationship and should not be viewed as creating such a relationship.
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise.
A description or indication of limitation of practice does not mean that any agency or board has certified such lawyer as a specialist or expert in an indicated field of law practice nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered.
"We are a Debt Relief Agency. We Help People File for Bankruptcy Under the Bankruptcy Code."
Contingent fee rates are subject to rule 32:1.5(c) and (d). Percentages are computed after deduction of costs and the public is advised that, in the event of an adverse verdict or decision, the contingent fee litigant could be liable for court costs, expenses of investigation, expenses of medical examinations, and costs of obtaining and presenting evidence. Contingent fee agreements are not available for criminal law cases and most family law cases.
In the event a lawyer’s communication seeks to advise the client of litigation, the client is advised that the filing of a claim or suit solely to coerce a settlement or to harass another could be illegal and could render the person so filing liable for malicious prosecution or abuse of process.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any tax advice contained on this website is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding tax-related or other penalties under the U.S. Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matter addressed herein.