Monthly Archives: September 2012

A case originating in Hamilton County Iowa was recently reviewed and decided by the Iowa Court of Appeals.  In their decision, the court affirmed the decision of the district court to deny the petitioner’s request to modify their dissolution decree.

Case Background

The original divorce decree involved in this case was entered in March of 1999.  The parties, Kevin Arndt and Shanon Green had two children during the course of their marriage, a son and a daughter.  In the decree, the couple agreed to joint legal custody with Shanon retaining physical care of the children.  However, the couple ended up alternating care of the children every two weeks.  Kevin was ordered to pay $300 in support every month in child support.

Modifications of the Dissolution Decree

There were several modifications made to the decree including one increase and one decrease to the amount of support Kevin was ordered to pay.  The modifications were made in 2001 and 2003.  There was also a modification to the custody arrangement of the children.  A second modification in 2003 ordered the couple to alternate care of the children on a weekly basis and neither was required to pay child support.

Shanon petitioned the court again in 2009 to modify the decree so that the physical care of the children be placed with her.  In order to modify the decree, Shanon was required to show a “substantial and material change in circumstances” had occurred.  She alleged that her ex-husband  was not exercising his weeks of childcare, that he had stopped communicating with her, and that he was failing to “properly guide” their son who was involved in delinquency proceedings at the time.

District Court’s Decision Regarding the Modification Petition

By the time the case actually came to trial, the parties had come to the agreement that their son should be placed in the physical care of Kevin, however, could not stipulate to the placement of their 15 year old daughter.  Because of the daughter’s age, her opinion was taken into consideration.  She liked being with her mother during the week because it accommodated her scheduled activities, however, was clear that she preferred being with her father when it did not interfere with her activities.

The District Court ruled that Shanon had not met her burden to establish material and substantial change in circumstances.  Shanon appealed to the Iowa Court of Appeals.

Iowa Child Custody Modification Law

 

“Once a physical care arrangement is established, the party seeking to modify it bears a heightened burden, and we will modify the arrangement only for most cogent reasons.”  Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

There is a high burden to meet if a party wants to modify a decree of the court.  The petitioner must establish, by a preponderance of the evidence, that the circumstances since the decree was entered have changed to substantially and materially that the children’s best interests necessitate a change to the decree.  The circumstances necessitating the change to the decree must not have already been considered by the court when the decree was entered and must not be temporary.

If the court decides that this first burden has been met, they will then decide if the petitioning party is able to care more effectively for the child.

Factors to be considered in modifying custody include:

  1. Best interests of the children
  2. Child’s preference (but less weight in modification than in initial custody proceedings)
  3. Siblings should not be separated
  4. Conduct of the custodial parent (including whether the parent encourages and facilitates the child’s relationship with the other parent),including denial of visitation or contact.
  5. Stability for the Child

 

IA Court of Appeals Decision

The court did not find the evidence supported a change in the share care arrangement of the parties.  Shanon failed to show a substantial and material change in circumstances to necessitate a modification to the dissolution decree.  The court did find evidence to support a modification to Kevin’s ordered amount of child support.  Kevin is now ordered to pay $173.13 in support of the two children.

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Recently, the Des Moines Register published an article regarding two lawsuits filed against the Iowa Department of Human Services (DHS).  The lawsuits allege that children in Iowa are being removed from their homes as a result of voluntary agreements signed by non-custodial parents.  Voluntary removal agreements are not part of any official court proceedings.  They are used outside of formal court supervision to remove children from reported harmful situations.

DHS explains that voluntary removal agreements are used as a first option in an attempt to place the child with relatives or foster care parents.  They believe that with the agreement being voluntary, DHS will be able to remove the child from any perceived harm more quickly than if they had to file a formal Child in Need of Assistance petition and have the child declared a ward of the state.

Concerns

More Children Being Placed in Foster Care

There are, however, concerns about the voluntary removal process.  There are more foster care placements because of the voluntary agreements.  An Iowa City attorney, Natalie Cronk, has filed the aforementioned two lawsuits claiming that as a result of the voluntary agreements, children are being placed in foster care without proof that they were unsafe in their original home.  Cronk states that the burden of proof has shifted to the parents to prove that their home is unsafe, rather than DHS having to prove there are unsafe conditions in the home.

Non-Custodial Parents Signing Voluntary Removal Agreements

Also, a major concern with voluntary removal agreements is that non-custodial parents are allowed to sign them.  In the two lawsuits filed, non-custodial parents signed voluntary removal agreements causing the child to be removed from their custodial parents.  DHS states that they cannot know who has custody when they respond to allegations of abuse.

Voluntary Removal Agreements and Parents’ Rights

Cronk believes that voluntary removal agreements violate parents’ rights, however, parents sign them because they are at risk of losing their child permanently.  Another concern is the lack of court supervision and lack of representation with the agreements.  Children do not have their own guardian ad litems, and it is DHS social workers who make decisions rather than judges.  Some in the child welfare system are concerned because there are voluntary removal agreements being used in cases involving serious risks to children, including meth, sexual abuse and domestic violence.

DHS attempts to take parents’ rights into consideration by involving them in family team meetings.  These meetings involve all of the parties and involved professionals of a case together to make decisions about the child’s welfare.

Violation of Parents’ Rights or Focusing DHS Services?

The question raised by these two lawsuits is whether the voluntary removal agreements are a threat to parents’ rights or a way for DHS to better focus their attention on very high risk cases and provide attention to all children who need it in Iowa.

There has been a similar situation in Illinois where a class action lawsuit against the use of voluntary safety plans (Illinois’ equivalent to Iowa’s voluntary removal agreements).  The Family Defense Center out of Chicago won that case against the State of Illinois, however the decision was overturned by the 7th Circuit Court of Appeals which ruled that any safety plan is voluntary under the law.

 

 

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