Iowa Case Law | Iowa Divorce Law

Alimony

In Re Marriage of Francis 442 N.W.2d 59 (Iowa 1989)

Parties were married before husband was accepted to medical school. The wife helped support the family during his medical school through in in-home daycare. After six years and two children they are getting at divorce.
The Court finds that a spouse's contribution to that increased earning potential is a factor properly considered in the award of alimony and an equitable division of the parties' assets.

Court uses the rule that an advanced degree or professional license in and of itself is not an asset for property division purposes.

But the future earning capacity flowing from an advanced degree or professional license is a factor to be considered in the division of property and the award of alimony.

It must be remembered, however, that the purposes of property division and alimony are not the same. Property division is based on each partner's right to "a just and equitable share of the property accumulated as the result of their joint efforts." Alimony, on the other hand, is a stipend to a spouse in lieu of the other spouse's legal obligation for support.
Court held that wife should be given reimbursement alimony rather than a property settlement and therefore ordered the trial court to modify their decree accordingly.

Traditional Alimony

In Re Marriage of Williams 449 N.W.2d 878 (Iowa App. 1989)

The dissolution decree awarded the farm, together with livestock and equipment, to Joan. The decree awarded Carl the house in Omaha, along with unspecified employment pension rights and a $ 3,200 IRA. In addition, each party was awarded various vehicles and small assets. Carl was directed to assume all of the parties' debts, which totaled $ 14,630. Joan has appealed from the decree, and Carl has cross-appealed.
In his cross-appeal, Carl contends his alimony obligation is excessive. Alimony is not an absolute right, but must be determine in light of all circumstances. When determining the appropriateness of alimony, the court must consider (1) the earning capacity of each party, and (2) their present standards of living and ability to pay balanced against their relative needs. Alimony is an allowance to the ex-spouse in lieu of a legal obligation to support that person. The Court determined the alimony provision made by the district court to be appropriate.

In Re Marriage of Grady-Woods 577 N.W.2d 851 (Iowa App. 1998)

Wife appeals the district court's economic provisions of a divorce decree denying her a share of the appreciation of her husband's business.
Alimony is not a right, rather, an award depends upon the circumstances of each case. It is sometimes used to remedy the inequities in a marriage and to compensate a spouse who leaves the marriage at a financial disadvantage.

Among those factors are the length of the marriage; the property brought to the marriage by each party; the contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services; the age and physical and emotional health of the parties; the contribution by one party to the education or increased earning power of the other; and the earning capacity of each party.
There are three types of alimony awarded by the courts. Rehabilitative alimony serves to support an economically dependent spouse through a limited period of education and retraining. Its objective is self-sufficiency. Reimbursement alimony is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other. Traditional alimony is payable for life or for so long as a dependent spouse is incapable of self-support.

The wife’s employment history and earning capacity evidence a self-sufficiency inconsistent with the underlying purpose of rehabilitative alimony. The wife has made no economic sacrifices during the marriage that contributed to Gilbert's earning capacity, and thus, is not entitled to reimbursement alimony. Traditional alimony is awarded when "the feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage." This was a relatively short marriage.
The court held that the wife was not entitled to alimony because she has sufficient funds to support herself and

In Re Marriage of Clinton 579 N.W.2d 835 (Iowa App. 1998)

Robert was ordered to pay Patricia spousal support of $ 1200 per month until she reaches sixty-two years of age, dies, or remarries, whichever occurs first. Robert contends the issue of alimony was not before the district court, he had insufficient time to prepare to litigate the issue of alimony, and his constitutional rights of due process were violated.
The economic provisions of a dissolution decree are based on a number of factors, including the length of the marriage, the age and health of the parties, the parties' earning capacities, the levels of education, and the likelihood the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed in the marriage.
A review of the record convinces the court that although Patricia was able to work in her chosen field and obtain additional education during the marriage, the structure of the marriage was to consider Robert's career primary. Appellate Court modified the trial court's award of alimony by reducing the amount from $1200 a month to $600 a month.

In Re Marriage of Rhinehart 704 N.W.2d 677 (Iowa 2005)

The lower court the court awarded Deborah traditional alimony of $ 1800 per month for five years, and then $ 1100 per month until she reaches age sixty-five. The court of appeals affirmed the amount of alimony awarded by the district court, but modified the property division to account for the additional value of the Prudential account. To decide whether the alimony was set too high in view of Deborah's interest in the family trust, it is first necessary to determine the nature of Deborah's interest.

Deborah's interest in the trust is not vested. The trust can be unilaterally amended by her father at any time, a power that allows him to change the beneficiaries.

In addition to the possibility that Deborah could be removed as a beneficiary, payment of trust income is at the discretion of the co-trustees, and income not distributed is added to the principal. Therefore, Deborah has no right to the allocated, but undistributed, income from the trust. Consequently, it would not be appropriate to treat the undistributed income from the trust as a current source of financial support that would alleviate Deborah's need for alimony. We conclude there is no basis to modify the alimony award based on Deborah's interest in the income generated by the family trust fund.

Rehabilitative Alimony

In Re Marriage of Grauer 478 N.W.2d 83 (Iowa App. 1991)

Couple was married for three years with no children; husband was a farmer that owned now land, but did own farm-related machinery and livestock. Wife had been an executive legal secretary, but upon marriage she quit her job to move to Iowa. After their separation, she returned to Dallas, but now needs a training period of six months to update her knowledge
Douglas was directed to pay Carolyn Kay rehabilitative alimony as follows: a $ 10,000 lump sum payment in August 1990 and $ 1,000 per month for thirty-six months thereafter. Douglas appealed this judgment
Appellate court stated that alimony is a stipend made to one former spouse in lieu of the other's legal obligation for support. Alimony is not an absolute right; an award depends upon the circumstances of each particular case. Rehabilitative alimony serves to support an economically dependent spouse "through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting. The Court found the award must be modified to reflect the goals underlying an award of rehabilitative alimony.

Court stated that the wife’s standard of living before the marriage is irrelevant. Nowhere does the Code direct the court to restore an ex-spouse to his or her premarital standard of living. Therefore they modified the district court's award of rehabilitative alimony to $ 1,500 per month for twelve (12) months.

Reimbursement Alimony

In Re Marriage of Francis 442 N.W.2d 59 (Iowa 1989)

Parties were married before husband was accepted to medical school. The wife helped support the family during his medical school through in in-home daycare. After six years and two children they are getting at divorce.
The Court finds that a spouse's contribution to that increased earning potential is a factor properly considered in the award of alimony and an equitable division of the parties' assets.

Reimbursement" alimony, on the other hand, which is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other, should not be subject to modification or termination until full compensation is achieved. Similar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree. In recognition of the personal nature of the award and the current tax laws, however, a spouse's obligation to pay reimbursement alimony must terminate upon the recipient's death.
Court held that wife should be given reimbursement alimony rather than a property settlement and therefore ordered the trial court to modify their decree accordingly.

In Re Marriage of Probasco 676 N.W.2d 179 (Iowa 2004)

The parties formally married on February 12, 1991. However, they stipulated that they have been married since November 1985. Throughout 1987 and 1988, the parties lived primarily on borrowed money because Craig's income from New York Life was low. Ralane continued to work in the home, caring for the children, handling family finances, and preparing reports for Craig's insurance work. Ralane worked for the Census Bureau in 1990 and eventually landed a permanent position with Wilson Trailer of Sioux City in January 1991. She also assisted Craig in the evenings on the Perkins franchise project. Because Craig's insurance income was substantially reduced, the family had to rely on Ralane's income over the next four years.
When the restaurant opened, Ralane continued her employment with Wilson Trailer to maintain health insurance for the family. In January 1994, Ralane terminated her employment with Wilson Trailer and became accounts payable coordinator at the restaurant. The business was so successful that it became the highest volume Perkins in the system with annual sales in excess of $ 3,800,000.
The lower court awarded Ralane reimbursement alimony in the amount of $ 60,000 per year for thirteen years. The court gave the following rationale for the award: The alimony award is compensation for Ralane's contribution to Craig's obtaining the downtown Perkins franchise, which, like a professional license, is an ongoing benefit to Craig, which Ralane reasonably relied on as a benefit to her future but for the interruption of this dissolution.

Court found that Ralane has been awarded one-half of the current value of those assets and therefore the award of reimbursement alimony is to a duplicative award. Moreover, an award of reimbursement alimony in these circumstances effectively means that Ralane would be entitled to future income regardless of whether the business and real estate remain profitable, a result that hardly seems equitable.

In Re Marriage of Jennings 455 N.W.2d 284 (Iowa 1990)

Couple was married in 1984 and had one child. When they married, Tamara held a B.A., was working to be certified in teaching learning disabilities, and held a full-time teaching position in a public school. Kyle was an undergraduate at Iowa State University and was employed part-time. After graduating from Iowa State, he pursued a degree at Drake Law School. He graduated from Drake in May 1988. Kyle was ordered to pay Tamara alimony of $300 per month for three years. The trial court placed considerable emphasis on the fact that Kyle did an excellent job in law school, he has a good job with a Des Moines firm, and the future will bring substantial increases in his income.
The Court noted that it was a short-term marriage with neither party making substantial personal sacrifices. His basic educational expenses were paid by his family and even though Tamara earned more income than Kyle, he brought more money into the marriage, as well as the gifts from his family (in addition to tuition payments).
In making their decisions, the Court states that, where advanced degree creates an expectancy of higher earnings, the degree may be taken into account in calculating future earning capacity and while not a property right, can be considered on the issue of both alimony and property division.

Here the court took into account that Kyle’s parent’s paid for his tuition and living expenses therefore not making Tamara pay for his education

The Appellate Court agreed with the trial court that Tamara should leave the marriage with more assets than Kyle does, but because there were assets here that could accomplish that purpose; they determined it is better to settle the inequities with property. Therefore they modified the decree to eliminate the alimony award.

In Re Marriage of Mouw 561 N.W.2d 100 (Iowa 1989)

When the marriage had ended, the couple had three children; Loren was a neurosurgeon; and Dawn had a bachelor's degree and had nearly completed her master's degree. The court decided upon the property settlement and he was ordered to pay $3442 a month as spousal support for ten years.
The Court found that they both contributed substantially. Both leave the marriage with educations enabling them to go forward with careers in fields that are anticipated will generate above-average income.
The Court also found that Loren's income potential may be greater than Dawn's. Dawn still needs three more years to complete her doctorate degree. There is evidence with the doctorate degree she should have the ability to earn $150,000 annually. The Court therefore considered both parties' income potential.
The entry into the chosen field was the result of certain personal aptitudes and abilities. The fact that the field of one may generate more income than the field of the other is not the controlling factor in the alimony award where both have the education and potential to supply for themselves a very adequate living. The court reduced the alimony to $2000 a month for ten years.

Property Division

In Re Marriage of Hoak 365 N.W.2d 185 (Iowa 1985)

In Re Marriage of Conley 284 N.W.2d 220 (Iowa 1979)

Husband was a veterinarian and him and his wife had been married twenty-four years at the time of trial. They had six children, two of whom still lived at home.
The parties accumulated substantial assets during the marriage. John practiced in a professional corporation and owned one-half its stock. The parties owned the office building in which the corporation was housed, their home, household goods, life insurance, a 285-acre farm, machinery and livestock.
Husband was awarded the stock, office building, his life insurance, the farm, machinery, and livestock. He was ordered to pay the bank note. Wife was awarded the home, the household goods, her life insurance, and her inheritance. In an effort to equalize the property division, the court ordered John to pay Aurelia $90,000.
As a result, the property division fell substantially short of the trial court's goal of an approximately equal division of the assets exclusive of Aurelia's inheritance. Particularly significant here are the length of the marriage and the equal efforts of the parties in raising a family and acquiring the marital property.
Husband’s veterinary practice is the source of the parties' livelihood. The farmland is an investment. As such, it may well be expected to bear some of the burden of an equitable property division.

Premarital Property

In Re Marriage of Garst 573 N.W.2d 604 (Iowa 1985)

David and Marilyn were married in 1985. It was the second marriage for both parties. No children were born to the marriage. At the time of the parties' marriage, Marilyn earned $18,000 per year. At David's insistence, Marilyn quit her job when the couple married. The prenuptial agreement indicated that David's net worth exceeded 3 million dollars. His testimony also reflected this amount. Marilyn's net worth was listed at $17,000, composed primarily of a car and personal property.
David contends the district court erred in awarding Marilyn substantial assets as he claims Marilyn made no contribution to the appreciation or accumulation of assets and there was a substantial decline in David's net worth during the marriage. In making an equitable distribution of assets, the court must first determine what assets are available to be allocated between the spouses. To do this, the court must identify and value the assets of the parties, both jointly and separately. The value of the assets should then be determined as of the date of trial.
By awarding Marilyn the Brutsche farm and the residence, the trial court gave her an income-producing asset and a place to live. David concedes Marilyn is not responsible for the farm debts, but asks that he be awarded the Brutsche farm to help service the debt. Rather than awarding Marilyn the Brutsche farm, the court found that a more equitable distribution would be for the Brutsche farm to be awarded to Marilyn and David in equal shares, as tenants in common. This modification more closely achieves equity between the parties.

Cite Iowa Code Section 598.21 (1) and (1)(b)

Upon every judgment of annulment, dissolution, or separate maintenance the court shall divide the property of the parties and transfer the title of the property accordingly, including ordering the parties to execute a quitclaim deed or ordering a change of title for tax purposes and delivery of the deed or change of title to the county recorder of the county in which each parcel of real estate is located. The county recorder shall record each quitclaim deed or change of title and shall collect the fees. The court shall divide all property, except inherited property or gifts received by one party, equitably between the parties after considering many elements, including: The length of the marriage and the property brought to the marriage by each party.

In Re Marriage of Lattig 318 N.W.2d 811 (Iowa App. 1982)

Couple was married in 1973. There were no children born of this marriage.
Wife brought in personal items. Husband brought into the marriage an undivided one-quarter interest in residential property in Macksburg, Iowa, and a two hundred (200) acre farm in Madison County. The Macksburg property served as the marital residence of the parties. In March 1977, Richard's sisters sold him their interest in the Macksburg property for $2,000 each. To finance this and other purchases, Richard borrowed $12,464.84 and gave Associates a mortgage on the property. Shirley cosigned the promissory note to Associates. The remainder of the loan was used to insulate and re-side the house, to pay other family debts, and to purchase a pickup truck.
The court ordered the residence immediately sold for cash. The parties sold the residence for $15,000.00. From this amount, the court ordered the parties to pay the loan balance and other joint debts totalling $14,246.77. The balance of the proceeds was to be applied to the court costs with Richard paying any deficit or receiving any excess proceeds.
The court looked at what contributions were made by whom. Thus the full amount of the down payment was either made before the marriage with Richard's own funds or with funds he inherited. Richard made all payments on both the installment contract and on the Iowa State Bank loan during the marriage. Richard also paid all of the farm expenses. Shirley made no payments on the farm. As an additional factor in dividing appreciated property acquired before the marriage, we consider whether the appreciation which occurred during the marriage was fortuitous or due to the efforts of the parties.
Where the accumulated property is not the product of the joint efforts of both parties or where, as here, one party brings property into the marriage, there need not necessarily be a division. This is especially true where the marriage was of short duration.
Shirley did guarantee the loan for the farm equipment and did help on the farm for a short period of time before she began working full time. She should receive credit for the extent to which she was at risk under the loan agreement and for her contribution to the marriage. Accordingly, Shirley's equity in the farm in Madison County is reduced to $25,000.00.

Retirement and Pension Plans

Cite 598.21(1)(1)

Upon every judgment of annulment, dissolution, or separate maintenance the court shall divide the property of the parties and transfer the title of the property accordingly, including ordering the parties to execute a quitclaim deed or ordering a change of title for tax purposes and delivery of the deed or change of title to the county recorder of the county in which each parcel of real estate is located. The county recorder shall record each quitclaim deed or change of title and shall collect the fees. The court shall divide all property, except inherited property or gifts received by one party, equitably between the parties after considering many elements, including: Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.

In Re Marriage of Johnston 492 N.W.2d 206 (Iowa App. 1992)

Couple married December 31, 1982 and had no children; husband did not graduate high school and makes $28,632 per year. Wife graduated from high school and $20,020 per year
The district court awarded wife a portion of the equity in the parties' home, because husband retained in his employer's profit sharing plan and 401K plan. Wife appealed on the contention that the district court failed to make an equitable distribution of marital property, by allowing each party to keep his or her own pension and profit sharing interests.
The Appellate Court held that the exact value of the wife’s IPERS pension was not ascertainable. They would not assume the value is limited to wife’s vested contributions and disagreed with wife’s argument that a remand to take actuarial testimony to value the pension is necessary. In distributing property, the Iowa courts do not require an equal division or percentage distribution and therefore denied wife’s appeal.

Child Custody – Primary Caretaker

In Re Marriage of Winter 223 N.W.2d 165 (Iowa 1974)

Husband appeals the child custody provisions of the lower court. It is not a matter of reward or punishment. The issue is ultimately decided by determining under the whole record which parent can minister more effectively to the long-range best interests of the children."
Applying the applicable principles in light of all relevant factors, the court believed the custody provisions were right. Both parents expressed interest in the children and possessed parenting capabilities. With unfortunate exceptions, they each provided adequately for the children in their physical custody. Each child was with the parent he prefers to be with. A competent psychiatrist found this suitable. The children's attorney recommended it. And the trial judge, who saw and heard the witnesses, agreed.
The issue of divided custody is troublesome. The boys would prefer to be together and the court would prefer that they could be together. Siblings should not be separated without good and compelling reasons. However, in this case the children had already been long separated, had become adjusted to their situations, and had received adequate care. Therefore the court felt it would be unduly disruptive to upset the satisfactory relationships which have been established. In these circumstances, the disadvantage from risk of injury to the security and emotional health of two of the children was greater than any advantage to be gained by placing them all in the custody of one parent. Divided custody appeared to be the least detrimental available alternative.

Long Range Best Interest

In Re Marriage of Bartlett 427 N.W.2d 876 (Iowa App. 1988)

The trial court determined the father should have sole custody of the three children and found joint custody was not appropriate. In making the custody award the trial court determined Peter was the more mature parent and had a better grasp on reality. The trial court noted, her inability to perform basic household tasks, and her use of alcohol, cocaine and marijuana along with her financial irresponsibility were factors.
The denial by one parent of continuing contact with the other, without just cause, is a significant factor in determining custody. Iowa Code § 598.41(1). A mother's attempt to isolate and alienate children from their father is a factor to be given weight in custody determination. Therefore due to the fact that the wife tried to isolate the children from the husband, the court affirmed the decision to place the children with the husband.
Iowa statutes express a preference for joint custody over other custodial arrangements. A court denying joint custody must cite in its decision clear and convincing evidence that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and parent should be severed. The Appellate Court determined there were not clear and convincing reasons to deny joint custody. Therefore, the Appellate Court, modified the trial court's order to provide for joint custody with physical care in the father.

In Re Marriage of Collingwood 460 N.W.2d 486 (Iowa App. 1990)

Parties were married in 1978 and had two kids during the marriage. When Susan became ill after the birth of the second child, Russell took a more active role in the details of child care. He also relied heavily on his parents and hired persons to provide child care and household services.
After trial, the district court placed the children in joint legal custody and in Russell's primary physical care. The district court found both parties are good parents and can provide adequate homes for the children. The court acknowledged Russell can provide a stable home on the family farm, is unlikely to change his residence to accept employment, and can give the children close contact with their paternal grandparents, with whom they have an established warm relationship.
The court's major concern in custody cases is the best interest of the children. The objective is placement in an "environment most likely to bring the children to healthy physical, mental, and social maturity.
Weighing all the evidence on balance, the Appellate Court agreed that the long-term stability of the father tipped the scale in favor of placement of the children with Russell. The children have spent all their lives to the present on the farm. Russell is satisfied with his life as a farmer and fully intends to remain on the family farm. Russell's parents reside nearby, and provide the children with loving care and the warmth of an extended family.

Preference of Primary Caretaker

In Re Marriage of Moorhead 224 N.W.2d 242 (Iowa 1974)

During the pending of the dissolution action, while Denise had custody of the children, Gary attempted to visit the children regularly. According to his testimony he attempted to see the children as many as two or three times a week, and some 59 times altogether during the period. He was turned away on all except eight occasions.
The Court found that the evidence clearly demonstrated Gary was a responsible parent and a dependable provider of the material wherewithal and moral support the children would require in the coming years. The best interests of the children appeared to be of major concern to him, and he seemingly possessed the ability to insure they are realized. He attached some significance to the children's religious education and training and was a factor the court properly considered.
By contrast, Denise seemed somewhat less able to provide a stable atmosphere for their upbringing and she admitted the transition from the relatively "low-key" life in the country to a more active one in the city caused her to undergo a psychological change.
The appellate court conclude the trial court in fixing the custody of Thomas and Pamela with Gary gave due consideration to the children's best interests, and that such determination was adequately justified by the record.

Stable Environment

In Re Marriage of Williams 589 N.W.2d 759 (Iowa App. 1998)

After trial, the district court granted the parties joint custody of the children, with Barbara designated as the primary care parent. Todd appealed.
In assessing an issue of child custody, the controlling consideration is the interest of the children. The court determines placement according to which parent can minister more effectively to the children's long range best interests. 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.
It is the Court’s role to review the trial court's determination in light of the long-term best interests of the children. Of great concern is the father’s suicide attempt, history of drinking, and domestic.
The father contends that it will be bad for the children for the children to move away from their hometown but the ability for the primary care parent to relocate is regulated by statute, which provides that the court may consider a relocation of one hundred fifty miles or more a substantial change in circumstances. Even under this distance limitation, the primary consideration is not to protect the stability of the child's physical surroundings but rather to assure maximum contact between the child and the non-custodial parent.
Therefore the court held that the mother would be able to better provide stability to the children.

Visitation

Cite 598.41(1)

Custody of children.

1. a. The court may provide for joint custody of the child by the parties. The court, insofar as is reasonable and in the best interest of the child, shall 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 parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

b. Notwithstanding paragraph "a", if the court finds that a history of domestic abuse exists, a rebuttable presumption against the awarding of joint custody exists.

c. The court shall consider the denial by one parent of the child's opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement. Just cause may include a determination by the court pursuant to subsection 3, paragraph "j", that a history of domestic abuse exists between the parents.

d. If a history of domestic abuse exists as determined by a court pursuant to subsection 3, paragraph "j", and if a parent who is a victim of such domestic abuse relocates or is absent from the home based upon the fear of or actual acts or threats of domestic abuse perpetrated by the other parent, the court shall not consider the relocation or absence of that parent as a factor against that parent in the awarding of custody or visitation.

e. Unless otherwise ordered by the court in the custody decree, both parents shall have legal access to information concerning the child, including but not limited to medical, educational and law enforcement records.

2. a. On the application of either parent, the court shall consider granting joint custody in cases where the parents do not agree to joint custody.

b. If the court does not grant joint custody under this subsection, the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed.

c. A finding by the court that a history of domestic abuse exists, as specified in subsection 3, paragraph "j", which is not rebutted, shall outweigh consideration of any other factor specified in subsection 3 in the determination of the awarding of custody under this subsection

d. Before ruling upon the joint custody petition in these cases, unless the court determines that a history of domestic abuse exists as specified in subsection 3, paragraph "j", or unless the court determines that direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result, the court may require the parties to participate in custody mediation to determine whether joint custody is in the best interest of the child. The court may require the child's participation in the mediation insofar as the court determines the child's participation is advisable.

e. The costs of custody mediation shall be paid in full or in part by the parties and taxed as court costs.

3. In considering what custody arrangement under subsection 2 is in the best interest of the minor child, the court shall consider the following factors:

a. Whether each parent would be a suitable custodian for the child.

b. Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.

c. Whether the parents can communicate with each other regarding the child's needs.

d. Whether both parents have actively cared for the child before and since the separation.

e. Whether each parent can support the other parent's relationship with the child.

f. 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.

g. Whether one or both the parents agree or are opposed to joint custody.

h. The geographic proximity of the parents.

i. 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.

j. Whether a history of domestic abuse, as defined in section 236.2, exists. In determining whether a history of domestic abuse exists, the court's consideration shall include, but is not limited to, commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 236.8, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A.

4. Subsection 3 shall not apply when parents agree to joint custody.
5. a. If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. Prior to ruling on the request for the award of joint physical care, the court may require the parents to submit, either individually or jointly, a proposed joint physical care parenting plan. A proposed joint physical care parenting plan shall address how the parents will make decisions affecting the child, how the parents will provide a home for the child, how the child's time will be divided between the parents and how each parent will facilitate the child's time with the other parent, arrangements in addition to court-ordered child support for the child's expenses, how the parents will resolve major changes or disagreements affecting the child including changes that arise due to the child's age and developmental needs, and any other issues the court may require. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.

b. If joint physical care is not awarded under paragraph "a", and only one joint custodial parent is awarded physical care, the parent responsible for providing physical care shall support the other parent's relationship with the child. Physical care awarded to one parent does not affect the other parent's rights and responsibilities as a joint legal custodian of the child. Rights and responsibilities as joint legal custodian of the child include, but are not limited to, equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction.

6. If the parties have more than one minor child, and the court awards each party the physical custody of one or more of the children, upon application by either party, and if it is reasonable and in the best interest of the children, the court shall include a provision in the custody order directing the parties to allow visitation between the children in each party's custody.
7. When a parent awarded legal custody or physical care of a child cannot act as custodian or caretaker because the parent has died or has been judicially adjudged incompetent, the court shall award legal custody including physical care of the child to the surviving parent unless the court finds that such an award is not in the child's best interest.
8. If an application for modification of a decree or a petition for modification of an order is filed, based upon differences between the parents regarding the custody arrangement established under the decree or order, unless the court determines that a history of domestic abuse exists as specified in subsection 3, paragraph "j", or unless the court determines that direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result, the court may require the parents to participate in mediation to attempt to resolve the differences between the parents.

9. All orders relating to custody of a child are subject to chapter 598B.


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The Court finds that a spouse's contribution to that increased earning potential is a factor properly considered in the award of alimony and an equitable division of the parties' assets. Court uses the rule that an advanced degree or professional license in and of itself is not an asset for property division purposes. But the future earning capacity flowing from an advanced degree or professional license is a factor to be considered in the division of property and the award of alimony. It must be remembered, however, that the purposes of property division and alimony are not the same. Property division is based on each partner's right to "a just and equitable share of the property accumulated as the result of their joint efforts." Alimony, on the other hand, is a stipend to a spouse in lieu of the other spouse's legal obligation for support. Court held that wife should be given reimbursement alimony rather than a property settlement and therefore ordered the trial court to modify their decree accordingly. Traditional Alimony In Re Marriage of Williams 449 N.W.2d 878 (Iowa App. 1989) The dissolution decree awarded the farm, together with livestock and equipment, to Joan. The decree awarded Carl the house in Omaha, along with unspecified employment pension rights and a $ 3,200 IRA. In addition, each party was awarded various vehicles and small assets. Carl was directed to assume all of the parties' debts, which totaled $ 14,630. Joan has appealed from the decree, and Carl has cross-appealed. In his cross-appeal, Carl contends his alimony obligation is excessive. Alimony is not an absolute right, but must be determine in light of all circumstances. When determining the appropriateness of alimony, the court must consider (1) the earning capacity of each party, and (2) their present standards of living and ability to pay balanced against their relative needs. Alimony is an allowance to the ex-spouse in lieu of a legal obligation to support that person. The Court determined the alimony provision made by the district court to be appropriate. In Re Marriage of Grady-Woods 577 N.W.2d 851 (Iowa App. 1998) Wife appeals the district court's economic provisions of a divorce decree denying her a share of the appreciation of her husband's business. Alimony is not a right, rather, an award depends upon the circumstances of each case. It is sometimes used to remedy the inequities in a marriage and to compensate a spouse who leaves the marriage at a financial disadvantage. Among those factors are the length of the marriage; the property brought to the marriage by each party; the contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services; the age and physical and emotional health of the parties; the contribution by one party to the education or increased earning power of the other; and the earning capacity of each party. There are three types of alimony awarded by the courts. Rehabilitative alimony serves to support an economically dependent spouse through a limited period of education and retraining. Its objective is self-sufficiency. Reimbursement alimony is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other. Traditional alimony is payable for life or for so long as a dependent spouse is incapable of self-support. The wife’s employment history and earning capacity evidence a self-sufficiency inconsistent with the underlying purpose of rehabilitative alimony. The wife has made no economic sacrifices during the marriage that contributed to Gilbert's earning capacity, and thus, is not entitled to reimbursement alimony. Traditional alimony is awarded when "the feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage." This was a relatively short marriage. The court held that the wife was not entitled to alimony because she has sufficient funds to support herself and In Re Marriage of Clinton 579 N.W.2d 835 (Iowa App. 1998) Robert was ordered to pay Patricia spousal support of $ 1200 per month until she reaches sixty-two years of age, dies, or remarries, whichever occurs first. Robert contends the issue of alimony was not before the district court, he had insufficient time to prepare to litigate the issue of alimony, and his constitutional rights of due process were violated. The economic provisions of a dissolution decree are based on a number of factors, including the length of the marriage, the age and health of the parties, the parties' earning capacities, the levels of education, and the likelihood the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed in the marriage. A review of the record convinces the court that although Patricia was able to work in her chosen field and obtain additional education during the marriage, the structure of the marriage was to consider Robert's career primary. Appellate Court modified the trial court's award of alimony by reducing the amount from $1200 a month to $600 a month. In Re Marriage of Rhinehart 704 N.W.2d 677 (Iowa 2005) The lower court the court awarded Deborah traditional alimony of $ 1800 per month for five years, and then $ 1100 per month until she reaches age sixty-five. The court of appeals affirmed the amount of alimony awarded by the district court, but modified the property division to account for the additional value of the Prudential account. To decide whether the alimony was set too high in view of Deborah's interest in the family trust, it is first necessary to determine the nature of Deborah's interest. Deborah's interest in the trust is not vested. The trust can be unilaterally amended by her father at any time, a power that allows him to change the beneficiaries. In addition to the possibility that Deborah could be removed as a beneficiary, payment of trust income is at the discretion of the co-trustees, and income not distributed is added to the principal. Therefore, Deborah has no right to the allocated, but undistributed, income from the trust. Consequently, it would not be appropriate to treat the undistributed income from the trust as a current source of financial support that would alleviate Deborah's need for alimony. We conclude there is no basis to modify the alimony award based on Deborah's interest in the income generated by the family trust fund. Rehabilitative Alimony In Re Marriage of Grauer 478 N.W.2d 83 (Iowa App. 1991) Couple was married for three years with no children; husband was a farmer that owned now land, but did own farm-related machinery and livestock. Wife had been an executive legal secretary, but upon marriage she quit her job to move to Iowa. After their separation, she returned to Dallas, but now needs a training period of six months to update her knowledge Douglas was directed to pay Carolyn Kay rehabilitative alimony as follows: a $ 10,000 lump sum payment in August 1990 and $ 1,000 per month for thirty-six months thereafter. Douglas appealed this judgment Appellate court stated that alimony is a stipend made to one former spouse in lieu of the other's legal obligation for support. Alimony is not an absolute right; an award depends upon the circumstances of each particular case. Rehabilitative alimony serves to support an economically dependent spouse "through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting. The Court found the award must be modified to reflect the goals underlying an award of rehabilitative alimony. Court stated that the wife’s standard of living before the marriage is irrelevant. Nowhere does the Code direct the court to restore an ex-spouse to his or her premarital standard of living. Therefore they modified the district court's award of rehabilitative alimony to $ 1,500 per month for twelve (12) months. Reimbursement Alimony In Re Marriage of Francis 442 N.W.2d 59 (Iowa 1989) Parties were married before husband was accepted to medical school. The wife helped support the family during his medical school through in in-home daycare. After six years and two children they are getting at divorce. The Court finds that a spouse's contribution to that increased earning potential is a factor properly considered in the award of alimony and an equitable division of the parties' assets. Reimbursement" alimony, on the other hand, which is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other, should not be subject to modification or termination until full compensation is achieved. Similar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree. In recognition of the personal nature of the award and the current tax laws, however, a spouse's obligation to pay reimbursement alimony must terminate upon the recipient's death. Court held that wife should be given reimbursement alimony rather than a property settlement and therefore ordered the trial court to modify their decree accordingly. In Re Marriage of Probasco 676 N.W.2d 179 (Iowa 2004) The parties formally married on February 12, 1991. However, they stipulated that they have been married since November 1985. Throughout 1987 and 1988, the parties lived primarily on borrowed money because Craig's income from New York Life was low. Ralane continued to work in the home, caring for the children, handling family finances, and preparing reports for Craig's insurance work. Ralane worked for the Census Bureau in 1990 and eventually landed a permanent position with Wilson Trailer of Sioux City in January 1991. She also assisted Craig in the evenings on the Perkins franchise project. Because Craig's insurance income was substantially reduced, the family had to rely on Ralane's income over the next four years. When the restaurant opened, Ralane continued her employment with Wilson Trailer to maintain health insurance for the family. In January 1994, Ralane terminated her employment with Wilson Trailer and became accounts payable coordinator at the restaurant. The business was so successful that it became the highest volume Perkins in the system with annual sales in excess of $ 3,800,000. The lower court awarded Ralane reimbursement alimony in the amount of $ 60,000 per year for thirteen years. The court gave the following rationale for the award: The alimony award is compensation for Ralane's contribution to Craig's obtaining the downtown Perkins franchise, which, like a professional license, is an ongoing benefit to Craig, which Ralane reasonably relied on as a benefit to her future but for the interruption of this dissolution. Court found that Ralane has been awarded one-half of the current value of those assets and therefore the award of reimbursement alimony is to a duplicative award. Moreover, an award of reimbursement alimony in these circumstances effectively means that Ralane would be entitled to future income regardless of whether the business and real estate remain profitable, a result that hardly seems equitable. In Re Marriage of Jennings 455 N.W.2d 284 (Iowa 1990) Couple was married in 1984 and had one child. When they married, Tamara held a B.A., was working to be certified in teaching learning disabilities, and held a full-time teaching position in a public school. Kyle was an undergraduate at Iowa State University and was employed part-time. After graduating from Iowa State, he pursued a degree at Drake Law School. He graduated from Drake in May 1988. Kyle was ordered to pay Tamara alimony of $300 per month for three years. The trial court placed considerable emphasis on the fact that Kyle did an excellent job in law school, he has a good job with a Des Moines firm, and the future will bring substantial increases in his income. The Court noted that it was a short-term marriage with neither party making substantial personal sacrifices. His basic educational expenses were paid by his family and even though Tamara earned more income than Kyle, he brought more money into the marriage, as well as the gifts from his family (in addition to tuition payments). In making their decisions, the Court states that, where advanced degree creates an expectancy of higher earnings, the degree may be taken into account in calculating future earning capacity and while not a property right, can be considered on the issue of both alimony and property division. Here the court took into account that Kyle’s parent’s paid for his tuition and living expenses therefore not making Tamara pay for his education The Appellate Court agreed with the trial court that Tamara should leave the marriage with more assets than Kyle does, but because there were assets here that could accomplish that purpose; they determined it is better to settle the inequities with property. Therefore they modified the decree to eliminate the alimony award. In Re Marriage of Mouw 561 N.W.2d 100 (Iowa 1989) When the marriage had ended, the couple had three children; Loren was a neurosurgeon; and Dawn had a bachelor's degree and had nearly completed her master's degree. The court decided upon the property settlement and he was ordered to pay $3442 a month as spousal support for ten years. The Court found that they both contributed substantially. Both leave the marriage with educations enabling them to go forward with careers in fields that are anticipated will generate above-average income. The Court also found that Loren's income potential may be greater than Dawn's. Dawn still needs three more years to complete her doctorate degree. There is evidence with the doctorate degree she should have the ability to earn $150,000 annually. The Court therefore considered both parties' income potential. The entry into the chosen field was the result of certain personal aptitudes and abilities. The fact that the field of one may generate more income than the field of the other is not the controlling factor in the alimony award where both have the education and potential to supply for themselves a very adequate living. The court reduced the alimony to $2000 a month for ten years. Property Division In Re Marriage of Hoak 365 N.W.2d 185 (Iowa 1985) In Re Marriage of Conley 284 N.W.2d 220 (Iowa 1979) Husband was a veterinarian and him and his wife had been married twenty-four years at the time of trial. They had six children, two of whom still lived at home. The parties accumulated substantial assets during the marriage. John practiced in a professional corporation and owned one-half its stock. The parties owned the office building in which the corporation was housed, their home, household goods, life insurance, a 285-acre farm, machinery and livestock. Husband was awarded the stock, office building, his life insurance, the farm, machinery, and livestock. He was ordered to pay the bank note. Wife was awarded the home, the household goods, her life insurance, and her inheritance. In an effort to equalize the property division, the court ordered John to pay Aurelia $90,000. As a result, the property division fell substantially short of the trial court's goal of an approximately equal division of the assets exclusive of Aurelia's inheritance. Particularly significant here are the length of the marriage and the equal efforts of the parties in raising a family and acquiring the marital property. Husband’s veterinary practice is the source of the parties' livelihood. The farmland is an investment. As such, it may well be expected to bear some of the burden of an equitable property division. Premarital Property In Re Marriage of Garst 573 N.W.2d 604 (Iowa 1985) David and Marilyn were married in 1985. It was the second marriage for both parties. No children were born to the marriage. At the time of the parties' marriage, Marilyn earned $18,000 per year. At David's insistence, Marilyn quit her job when the couple married. The prenuptial agreement indicated that David's net worth exceeded 3 million dollars. His testimony also reflected this amount. Marilyn's net worth was listed at $17,000, composed primarily of a car and personal property. David contends the district court erred in awarding Marilyn substantial assets as he claims Marilyn made no contribution to the appreciation or accumulation of assets and there was a substantial decline in David's net worth during the marriage. In making an equitable distribution of assets, the court must first determine what assets are available to be allocated between the spouses. To do this, the court must identify and value the assets of the parties, both jointly and separately. The value of the assets should then be determined as of the date of trial. By awarding Marilyn the Brutsche farm and the residence, the trial court gave her an income-producing asset and a place to live. David concedes Marilyn is not responsible for the farm debts, but asks that he be awarded the Brutsche farm to help service the debt. Rather than awarding Marilyn the Brutsche farm, the court found that a more equitable distribution would be for the Brutsche farm to be awarded to Marilyn and David in equal shares, as tenants in common. This modification more closely achieves equity between the parties. Cite Iowa Code Section 598.21 (1) and (1)(b) Upon every judgment of annulment, dissolution, or separate maintenance the court shall divide the property of the parties and transfer the title of the property accordingly, including ordering the parties to execute a quitclaim deed or ordering a change of title for tax purposes and delivery of the deed or change of title to the county recorder of the county in which each parcel of real estate is located. The county recorder shall record each quitclaim deed or change of title and shall collect the fees. The court shall divide all property, except inherited property or gifts received by one party, equitably between the parties after considering many elements, including: The length of the marriage and the property brought to the marriage by each party. In Re Marriage of Lattig 318 N.W.2d 811 (Iowa App. 1982) Couple was married in 1973. There were no children born of this marriage. Wife brought in personal items. Husband brought into the marriage an undivided one-quarter interest in residential property in Macksburg, Iowa, and a two hundred (200) acre farm in Madison County. The Macksburg property served as the marital residence of the parties. In March 1977, Richard's sisters sold him their interest in the Macksburg property for $2,000 each. To finance this and other purchases, Richard borrowed $12,464.84 and gave Associates a mortgage on the property. Shirley cosigned the promissory note to Associates. The remainder of the loan was used to insulate and re-side the house, to pay other family debts, and to purchase a pickup truck. The court ordered the residence immediately sold for cash. The parties sold the residence for $15,000.00. From this amount, the court ordered the parties to pay the loan balance and other joint debts totalling $14,246.77. The balance of the proceeds was to be applied to the court costs with Richard paying any deficit or receiving any excess proceeds. The court looked at what contributions were made by whom. Thus the full amount of the down payment was either made before the marriage with Richard's own funds or with funds he inherited. Richard made all payments on both the installment contract and on the Iowa State Bank loan during the marriage. Richard also paid all of the farm expenses. Shirley made no payments on the farm. As an additional factor in dividing appreciated property acquired before the marriage, we consider whether the appreciation which occurred during the marriage was fortuitous or due to the efforts of the parties. Where the accumulated property is not the product of the joint efforts of both parties or where, as here, one party brings property into the marriage, there need not necessarily be a division. This is especially true where the marriage was of short duration. Shirley did guarantee the loan for the farm equipment and did help on the farm for a short period of time before she began working full time. She should receive credit for the extent to which she was at risk under the loan agreement and for her contribution to the marriage. Accordingly, Shirley's equity in the farm in Madison County is reduced to $25,000.00. Retirement and Pension Plans Cite 598.21(1)(1) Upon every judgment of annulment, dissolution, or separate maintenance the court shall divide the property of the parties and transfer the title of the property accordingly, including ordering the parties to execute a quitclaim deed or ordering a change of title for tax purposes and delivery of the deed or change of title to the county recorder of the county in which each parcel of real estate is located. The county recorder shall record each quitclaim deed or change of title and shall collect the fees. The court shall divide all property, except inherited property or gifts received by one party, equitably between the parties after considering many elements, including: Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests. In Re Marriage of Johnston 492 N.W.2d 206 (Iowa App. 1992) Couple married December 31, 1982 and had no children; husband did not graduate high school and makes $28,632 per year. Wife graduated from high school and $20,020 per year The district court awarded wife a portion of the equity in the parties' home, because husband retained in his employer's profit sharing plan and 401K plan. Wife appealed on the contention that the district court failed to make an equitable distribution of marital property, by allowing each party to keep his or her own pension and profit sharing interests. The Appellate Court held that the exact value of the wife’s IPERS pension was not ascertainable. They would not assume the value is limited to wife’s vested contributions and disagreed with wife’s argument that a remand to take actuarial testimony to value the pension is necessary. In distributing property, the Iowa courts do not require an equal division or percentage distribution and therefore denied wife’s appeal. Child Custody – Primary Caretaker In Re Marriage of Winter 223 N.W.2d 165 (Iowa 1974) Husband appeals the child custody provisions of the lower court. It is not a matter of reward or punishment. The issue is ultimately decided by determining under the whole record which parent can minister more effectively to the long-range best interests of the children." Applying the applicable principles in light of all relevant factors, the court believed the custody provisions were right. Both parents expressed interest in the children and possessed parenting capabilities. With unfortunate exceptions, they each provided adequately for the children in their physical custody. Each child was with the parent he prefers to be with. A competent psychiatrist found this suitable. The children's attorney recommended it. And the trial judge, who saw and heard the witnesses, agreed. The issue of divided custody is troublesome. The boys would prefer to be together and the court would prefer that they could be together. Siblings should not be separated without good and compelling reasons. However, in this case the children had already been long separated, had become adjusted to their situations, and had received adequate care. Therefore the court felt it would be unduly disruptive to upset the satisfactory relationships which have been established. In these circumstances, the disadvantage from risk of injury to the security and emotional health of two of the children was greater than any advantage to be gained by placing them all in the custody of one parent. Divided custody appeared to be the least detrimental available alternative. Long Range Best Interest In Re Marriage of Bartlett 427 N.W.2d 876 (Iowa App. 1988) The trial court determined the father should have sole custody of the three children and found joint custody was not appropriate. In making the custody award the trial court determined Peter was the more mature parent and had a better grasp on reality. The trial court noted, her inability to perform basic household tasks, and her use of alcohol, cocaine and marijuana along with her financial irresponsibility were factors. The denial by one parent of continuing contact with the other, without just cause, is a significant factor in determining custody. Iowa Code § 598.41(1). A mother's attempt to isolate and alienate children from their father is a factor to be given weight in custody determination. Therefore due to the fact that the wife tried to isolate the children from the husband, the court affirmed the decision to place the children with the husband. Iowa statutes express a preference for joint custody over other custodial arrangements. A court denying joint custody must cite in its decision clear and convincing evidence that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and parent should be severed. The Appellate Court determined there were not clear and convincing reasons to deny joint custody. Therefore, the Appellate Court, modified the trial court's order to provide for joint custody with physical care in the father. In Re Marriage of Collingwood 460 N.W.2d 486 (Iowa App. 1990) Parties were married in 1978 and had two kids during the marriage. When Susan became ill after the birth of the second child, Russell took a more active role in the details of child care. He also relied heavily on his parents and hired persons to provide child care and household services. After trial, the district court placed the children in joint legal custody and in Russell's primary physical care. The district court found both parties are good parents and can provide adequate homes for the children. The court acknowledged Russell can provide a stable home on the family farm, is unlikely to change his residence to accept employment, and can give the children close contact with their paternal grandparents, with whom they have an established warm relationship. The court's major concern in custody cases is the best interest of the children. The objective is placement in an "environment most likely to bring the children to healthy physical, mental, and social maturity. Weighing all the evidence on balance, the Appellate Court agreed that the long-term stability of the father tipped the scale in favor of placement of the children with Russell. The children have spent all their lives to the present on the farm. Russell is satisfied with his life as a farmer and fully intends to remain on the family farm. Russell's parents reside nearby, and provide the children with loving care and the warmth of an extended family. Preference of Primary Caretaker In Re Marriage of Moorhead 224 N.W.2d 242 (Iowa 1974) During the pending of the dissolution action, while Denise had custody of the children, Gary attempted to visit the children regularly. According to his testimony he attempted to see the children as many as two or three times a week, and some 59 times altogether during the period. He was turned away on all except eight occasions. The Court found that the evidence clearly demonstrated Gary was a responsible parent and a dependable provider of the material wherewithal and moral support the children would require in the coming years. The best interests of the children appeared to be of major concern to him, and he seemingly possessed the ability to insure they are realized. He attached some significance to the children's religious education and training and was a factor the court properly considered. By contrast, Denise seemed somewhat less able to provide a stable atmosphere for their upbringing and she admitted the transition from the relatively "low-key" life in the country to a more active one in the city caused her to undergo a psychological change. The appellate court conclude the trial court in fixing the custody of Thomas and Pamela with Gary gave due consideration to the children's best interests, and that such determination was adequately justified by the record. Stable Environment In Re Marriage of Williams 589 N.W.2d 759 (Iowa App. 1998) After trial, the district court granted the parties joint custody of the children, with Barbara designated as the primary care parent. Todd appealed. In assessing an issue of child custody, the controlling consideration is the interest of the children. The court determines placement according to which parent can minister more effectively to the children's long range best interests. 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. It is the Court’s role to review the trial court's determination in light of the long-term best interests of the children. Of great concern is the father’s suicide attempt, history of drinking, and domestic. The father contends that it will be bad for the children for the children to move away from their hometown but the ability for the primary care parent to relocate is regulated by statute, which provides that the court may consider a relocation of one hundred fifty miles or more a substantial change in circumstances. Even under this distance limitation, the primary consideration is not to protect the stability of the child's physical surroundings but rather to assure maximum contact between the child and the non-custodial parent. Therefore the court held that the mother would be able to better provide stability to the children. Visitation Cite 598.41(1) Custody of children. 1. a. The court may provide for joint custody of the child by the parties. The court, insofar as is reasonable and in the best interest of the child, shall 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 parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent. b. Notwithstanding paragraph "a", if the court finds that a history of domestic abuse exists, a rebuttable presumption against the awarding of joint custody exists. c. The court shall consider the denial by one parent of the child's opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement. Just cause may include a determination by the court pursuant to subsection 3, paragraph "j", that a history of domestic abuse exists between the parents. d. If a history of domestic abuse exists as determined by a court pursuant to subsection 3, paragraph "j", and if a parent who is a victim of such domestic abuse relocates or is absent from the home based upon the fear of or actual acts or threats of domestic abuse perpetrated by the other parent, the court shall not consider the relocation or absence of that parent as a factor against that parent in the awarding of custody or visitation. e. Unless otherwise ordered by the court in the custody decree, both parents shall have legal access to information concerning the child, including but not limited to medical, educational and law enforcement records. 2. a. On the application of either parent, the court shall consider granting joint custody in cases where the parents do not agree to joint custody. b. If the court does not grant joint custody under this subsection, the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed. c. A finding by the court that a history of domestic abuse exists, as specified in subsection 3, paragraph "j", which is not rebutted, shall outweigh consideration of any other factor specified in subsection 3 in the determination of the awarding of custody under this subsection d. Before ruling upon the joint custody petition in these cases, unless the court determines that a history of domestic abuse exists as specified in subsection 3, paragraph "j", or unless the court determines that direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result, the court may require the parties to participate in custody mediation to determine whether joint custody is in the best interest of the child. The court may require the child's participation in the mediation insofar as the court determines the child's participation is advisable. e. The costs of custody mediation shall be paid in full or in part by the parties and taxed as court costs. 3. In considering what custody arrangement under subsection 2 is in the best interest of the minor child, the court shall consider the following factors: a. Whether each parent would be a suitable custodian for the child. b. Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents. c. Whether the parents can communicate with each other regarding the child's needs. d. Whether both parents have actively cared for the child before and since the separation. e. Whether each parent can support the other parent's relationship with the child. f. 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. g. Whether one or both the parents agree or are opposed to joint custody. h. The geographic proximity of the parents. i. 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. j. Whether a history of domestic abuse, as defined in section 236.2, exists. In determining whether a history of domestic abuse exists, the court's consideration shall include, but is not limited to, commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 236.8, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A. 4. Subsection 3 shall not apply when parents agree to joint custody. 5. a. If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. Prior to ruling on the request for the award of joint physical care, the court may require the parents to submit, either individually or jointly, a proposed joint physical care parenting plan. A proposed joint physical care parenting plan shall address how the parents will make decisions affecting the child, how the parents will provide a home for the child, how the child's time will be divided between the parents and how each parent will facilitate the child's time with the other parent, arrangements in addition to court-ordered child support for the child's expenses, how the parents will resolve major changes or disagreements affecting the child including changes that arise due to the child's age and developmental needs, and any other issues the court may require. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child. b. If joint physical care is not awarded under paragraph "a", and only one joint custodial parent is awarded physical care, the parent responsible for providing physical care shall support the other parent's relationship with the child. Physical care awarded to one parent does not affect the other parent's rights and responsibilities as a joint legal custodian of the child. Rights and responsibilities as joint legal custodian of the child include, but are not limited to, equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction. 6. If the parties have more than one minor child, and the court awards each party the physical custody of one or more of the children, upon application by either party, and if it is reasonable and in the best interest of the children, the court shall include a provision in the custody order directing the parties to allow visitation between the children in each party's custody. 7. When a parent awarded legal custody or physical care of a child cannot act as custodian or caretaker because the parent has died or has been judicially adjudged incompetent, the court shall award legal custody including physical care of the child to the surviving parent unless the court finds that such an award is not in the child's best interest. 8. If an application for modification of a decree or a petition for modification of an order is filed, based upon differences between the parents regarding the custody arrangement established under the decree or order, unless the court determines that a history of domestic abuse exists as specified in subsection 3, paragraph "j", or unless the court determines that direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result, the court may require the parents to participate in mediation to attempt to resolve the differences between the parents. 9. All orders relating to custody of a child are subject to chapter 598B.

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