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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.
- In Re Marriage of Miller
390 N.W.2d 596 (Iowa 1986)
- In Re Marriage of Weidner
338 N.W.2d 351(Iowa 1983)
- Weekends
- In Re Marriage of Lacaeyse
461 N.W.2d 475 (Iowa App. 1990)
- In Re Marriage of Toedter
473 N.W.2d 233 (Iowa App. 1991)
- In Re Marriage of Ertmann
376 N.W.2d 918 (Iowa App. 1985)
Liberal Visitation
In Re Marriage of Stepp 485 N.W.2d 846 (Iowa App. 1992)
Modification of Decree
- Substantial Change in Circumstances
- In Re Marriage of Sjulin
431 N.W.2d 773 (Iowa 1988)
- In Re Marriage of Full
N.W.2d 153 (Iowa 1977)
- Alimony Modification
- In Re Marriage of Schettler
455 N.W.2d 686 (Iowa App. 1990)
- In Re Marriage of Lee
486 N.W.2d 302 (Iowa 1992)
- In Re Marriage of Full
N.W.2d 153 (Iowa 1977)
Alimony Modification Because of Cohabitation
In Re Marriage of Harvey 466 N.W.2d 916 (Iowa 1991)
Modification Attorney Fees
- The 10% Rule
- Cite 598.21(9)
- In Re Marrige of Nelson
570 N.W.2d 103 (Iowa 1997)
- Change in Net Worth
- In Re Marriage of Lalone
468 N.W.2d 695
Modification of Attorney Fees
- In Re Marriage of Roerig
503 N.W.2d 620 (Iowa App. 1993)
Custody Modification
- Burden of Proof
- In Re Marriage of Bergman
466 N.W.2d 274 (Iowa App. 1990)
- In Re Marriage of Rosenfeld
524 N.W.2d 212 (Iowa App. 1994)
- 150 Mile Rule
- Cite 598.21(8A)
- In Re Marriage of MayField
577 N.W.2d (Iowa App. 1998)
Custody Modification Law
In Re Marriage of Rierson 537 N.W.2d 806 (Iowa App. 1995)
In Re Marriage of Decker 666 N.W.2d 175 (Iowa Ct. App. 2003)
Custody Modification of Denial of Visitation
In Re Marriage of Rosenfed 524 N.W.2d 212 (Iowa App. 1994)
In Re Marriage of Udel Hofen 444 N.W.2d 473 (Iowa 1989)
In Re Marriage of Clifford 515 N.W.2d 559 (Iowa App. 1994)
Cite 598.23(2)(b)
Kirk v. Iowa Dist. Court 508 N.W.2d 105 App. (1993)
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