Custody

Relationships can suffer greatly throughout the process of a divorce.  Obviously, there has already been a breakdown of the original relationship, and while navigating through the court process of the dissolution, happy feelings commonly deteriorate even further.  In cases involving children, emotions are likely to be even more strained.  Many people have issues with how the other spouse is caring for their child(ren), or maybe with the people they are exposing their children to.  Any number of problems can arise when something so important as people’s children are involved – especially when having to deal with one another face to face.

One solution that many are using to get around these testy interactions is technology.  The New York Times recently ran an article addressing this.  Couples, or rather, former couples are using texting, electronic calendars and email to communicate more than ever before.  Communicating electronically can help calm strained relationships by eliminating awkward or even angry run-ins with former spouses or significant others.

However, as the article points out, communicating electronically can also cause problems.  Tone and meaning can be lost when communicating by text or email.  Statements made in a joking or lighthearted manner may become mean-spirited and nasty if read in the wrong light.

Clearly, both positive and negative aspects can result from this new and increased use of technology.  Do you think it should be integrated even more into custody agreements?  Do you think parents should be able to set these communications up on their own, or should they be monitored closely by courts?  Is this a positive or negative development?

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Within the last week, a Los Angeles judge ruled against a petition filed by Halle Berry to relocate her daughter with actor and model Gabriel Aubry, to France.  Aubry objected to Berry’s request.  Presumably, Berry wanted to relocate her daughter to France because of her engagement to actor Olivier Martinez.  Berry has also stated that France has stronger paparazzi laws, which would provide more protection for her daughter.

Child Custody Modification in Iowa

In Iowa, a child custody/visitation schedule may be modified by a court if the petitioning party show, by a preponderance of the evidence, there has been a substantial and material change in circumstances since the entry of the decree.  The changes need to be permanent in nature.  Also, the party attempting to switch the primary care of the child needs to show that they can provide superior care than the other parent.  The courts recognize the importance of stability in a child’s life, thus the burden for justifying a change in location is high.

“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).

The court must also consider the following factors:

  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

If Berry’s case were held in Iowa, she would need to show that her move to France is permanent, and that she can care for the child in a superior manner as compared to Aubry.  She must show that the move is material and substantial in nature. She then would have to overcome all of the additional factors the court must consider in a child custody modification case.  Examining all of these hurdles leads one to believe that, as her petition was unsuccessful in California, it would also be unsuccessful here in Iowa.

 

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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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Clint Nass has appealed the decision of the Iowa District Court for Bremer County (in In Re the Marriage of Noel Ann Nass and Clint Lewis Nass) in regards to the physical care provision of the dissolution decree.  It is clear, from the Iowa Court of Appeal’s comments, that this divorce was filled with a fair amount of animosity.

The couple originally met when Noel was a senior in high school and Clint was 26 years old.  They shared a common bond of enjoying horseback riding.  After marrying in 2005, the couple opened a pet store.

Unfortunately, Clint and Noel experienced some troubling times in the next few years.  They suffered from the loss of their infant son shortly after his birth, as well as the birth of another premature baby.  Both the pet store the couple opened and their home were destroyed by a flood of the Cedar River in 2008.  They were forced to live in a garage with their 9 month old son.

Joint Legal Custody and Sole Physical Custody Awarded

Eventually, by working side and part time jobs, the couple was able to move to an acreage and have a home once again.  By the fall of 2009 however, the couple had separated.  Noel took primary care of the children because of the work schedule Clint chose at his employer, John Deere, 3rd shift (10:30pm to 7:00am).  He did, apparently, have a choice in the hours he worked.

The divorce trial lasted three days and resulted in the parties having joint legal custody of the children and Noel having physical care, with liberal visitation for Clint.  This decision is in keeping with Iowa child custody law.

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Affirmation of Lower Court’s Child Custody Decision

In its analysis, the Court of Appeals dispenses quickly with any question of the lower court’s placement of physical care of the children, saying “she, quite simply, can minister more effectively to the long-range best interests of the children.”  In stating this however, the court of course considered the relevant factors from In re Marriage of Winter, 223 N.W.2d 165, 166-67.  The court made clear that it was “abundantly clear” that Noel had been the primary caregiver, even after the devastating loss of her first child, their business, and their home.  Clint’s time with the children was very limited even when they were in his care.  His mother, the children’s paternal grandmother, often cared for the children as a result of the work schedule Clint chose to maintain.

Throughout the divorce, Clint has refused to converse directly with Noel.  Despite this, Noel has continued to attempt to provide the children with quality time with their father.  This is important to the court, as they must consider  which parent will encourage the most contact by the noncustodial parent with the children in Iowa.  The court notes that Noel has cooperated with Clint under very trying circumstances and that Clint’s interest in the children did not arise until after the couple’s separation and “even then was continually diluted by his other, selfish interests.”

The court affirms, and wholeheartedly at that it seems, the decision of the lower court to have physical care of the children remain with Noel despite Clint’s arguments.  Noel was also awarded appellate attorney fees of $1500.

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The Best Interests of the Child

Recently, the Huffington Post featured an editorial posing the question, “Child Custody:  In Whose Best Interest?”  The title of this article is referencing the guideline judges use to make decisions in cases involving children.  The best interests of the child, along with statutory requirements, are certainly the central concern in Iowa cases  involving children such as CINA (Child(ren) in Need of Assistance) cases and child custody cases.  The factors taken into consideration when deciding what is in the best interest of children are explained in several different Iowa Code Sections such as:  Child Custody and Termination of Parental Rights.

The Problem of Voiceless Children in Today’s Child Custody Plans

In her article, Dr. Ruth Bettelheim, Ph.D., points out the ways in which our current child custody plans and our current court system fail to take a child’s best interest into full consideration.  Dr. Bettelheim argues that our current system actually caters more to parents than children.  She points out that children’s needs change as they grow older, however, at this point, their schedules are dictated by the needs and conveniences of their parents.  Unless the custody plan is changed at some point, which can be a difficult and costly process for parents, it will remain the same until the child reaches the age of 18.

Because children are not routinely or officially put in charge of deciding where they would like to live and how much time they would like to spend at each parent’s residence, many children feel as if they have no power over their own lives.  Dr. Bettelheim believes that we should be concerned about this because it takes away children’s voices and creates burdens on their relationships not only with their parents but also their friendships that are so important as they grow.  She believes this can be detrimental to children and may also lead to provocative or damaging behavior by the child.

Some may be surprised to learn that, generally, children have reached the “age of reason” (according to most in the judicial system) by age 7.  Although we recognize this young age as a time when a child is able to make reasoned decisions about their lives, it is not reflected in how we create and maintain child custody plans in our courts.

Increased Reviews of Child Custody Plans as a Solution to Powerless Children

Dr. Bettelheim believes that there should be a mandatory, regular review of all child custody plans as children grow older.  She also believes that children should be given much more power in deciding their own fates when it comes to where they live and who they live with.  She believes there should be a formal outlet for them to voice their wishes concerning their custody.  Dr. Bettelheim does qualify this suggestion by stating that the child’s decisions need to be taken into account along with how they are performing in school, how they are functioning at home, and what their inter-personal relationships are like.

Consequences of Increased Reviews of Child Custody Plans

Dr. Bettelheim’s plan would certainly increase children’s decision-making power, but it would also cause confusion and inconsistency in child custody plans.  It raises questions as to what happens when siblings within the same family wish to have very different living arrangements, or what if a child is functioning well in school, but not at home?  Do they have the same ability to make decisions as a child who is falling short at school?  Having more and regular reviews of child custody plans would also cause more delay and backup in an already overloaded court system.  Is having more court hearing s even logistically possible?

Use of Mediation in Child Custody Plan Reviews

One possible solution to this problem of ignoring children’s decision-making power may be to utilize mediation services more regularly.  Participation in mediation would allow children a voice in their futures as well as provide a much less confrontational and much less intimidating environment to express their wishes than a courtroom.  Mediation would also allow many of these reviews of custody plans to stay out of the court system.  Use of alternative dispute resolution services, especially mediation, would also be much less costly for families than having several court hearings to decide custody arrangements.

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The decrease in the amount of marriages and the change in what a family unit looks like in the United States has prompted lawmakers in CA to propose a bill that would allow a child to have more than two parents.  The New York Times reported last week on a bill that has passed the California Senate with Democrats voting for and Republicans against.

Increasing Number of States Recognizing Third Parents

This may seem like a revolutionary idea – for a child to have more than two parents, however, there are several states that have recognized similar situations in recent years.  As the NY Times reports, Delaware and the District of Columbia have passed laws that allow for third “de facto” parents.  Other states such as Oregon

“Non-Traditional” families may gain increased legal recognition if recently introduced California legislation becomes law.

and Massachusetts have had their courts recognize third parents throughout the last decade.

The CA bill would allow judges to acknowledge that a child has more than two legal parents.  This recognition would allow families that include same-sex couples to have legal relationships where they may not have been able to previously.  There are many possibilities for today’s varied family structures to have more security – insurance, schools, hospitals, etc. would all be more accessible to people acting as parents because they would now be able to be legally recognized as parents.

The bill would not only benefit families that include a same-sex couple.  For example, if a husband and wife divorce, this bill would allow the new spouse of either biological parent to be able to adopt any children from the previous marriage without having to terminate the parental rights of the biological parent.

Opponents of Recognizing Third Parents

Opponents of the law have concerns however.  They believe that this bill would “open the door” to same sex marriage, which they believe is wrong.  Critics also point out the confusion this could cause when it comes to child support payments.  It isn’t clear at this point what the effects would be on child support, however, it seems that it could only be beneficial to the child to have more sources of child support available.  The recognition of additional parents may also reduce the incredible stress on many state foster care systems because there would be more relatives available for placement when children are removed from their homes.

Opponents are also wary of slippery slope situations where a child could have a dozen parents, or more.  However, the bill does not seem to allow a free for all – it allows a judge to recognize an additional legal parental relationship between an adult and a child in addition to the child’s biological mother and father.  The judge would have to find that the recognition of this additional parent is in the child’s best interest.

Recognizing a Third Parent in Iowa

Currently, Iowa is not one of the states that recognizes a third parent relationship.  When child custody is an issue in Iowa,

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

As in other states, it is unclear how the recognition of a third parent would change child custody practices in Iowa.  A bill similar to the CA bill has not yet been introduced in Iowa, however, if the CA bill is successful, it may open the door for such legislation in other states, including Iowa.

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The Iowa Court of Appeals recently decided a case that involves several points including child custody, visitation and support.  The case is brought on appeal by Daniel Moyer from the Iowa District Court for Pottawattamie County.  Daniel and his ex-wife Ashley Moyer were married in March of 2008 and had previously had a son, Gabriel, born in July 2006.   They divorced in June of 2010.  All of the issues were decided and included in the couple’s dissolution of marriage decree.

 In Re the Marriage of Ashley Moyer and Daniel Moyer

The couple lived with Dan’s parents rent and expense free while Ashley was pregnant with their child and after the birth when married.  The court finds that although living with Dan’s parents, both Dan and Ashley were ambitious and industrious.  Dan went to school for an associate’s degree in math while Ashley took care of their child and eventually attended culinary school and worked in food service.

When Dan and Ashley separated, Ashley moved out of her in-law’s home with Gabriel, however, Dan continued to care for Gabriel at night while Ashley worked.  Approximately a year later, Dan moved to Laramie, Wyoming to pursue a degree in petroleum engineering at the University of Wyoming.  He lived with his girlfriend and her child.  Ashley continued to live and work in Council Bluffs.

The divorce decree, entered August 23, 2011, granted physical care to Ashley with Dan receiving visitation when he is in Iowa, along with 6 weeks of visitation in the summer and over the Christmas holidays.  Dan was ordered to pay $195.13 per month in child support.  Soon after the decree was entered, Dan filed a combined motion for new trial, expanded findings, and interpretation.

 Court of Appeals Reviews District Court’s Child Custody, Visitation and Support Decision

 Child Custody

The Court reviews child custody decisions de novo, meaning they examine the entire record and make new judgments on each issue presented.  They will give strong consideration to the district court’s findings of fact.

In favor of his being granted child custody, Dan argues that he is the more stable parent, he had been the primary caregiver, the proximity of Gabriel to his grandparents was relied too heavily upon by the district court, and that Ashley disregards his role as a parent.  The court views all of these arguments in the light of what is in the best interest of the child.  The factors set forth in Iowa Code section 598.41(3) (2009) guide the court:

 

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 664A.7, 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.

In regards to being the more stable parent, the court finds nothing with regard to Ashley’s employment or living situation that would hamper her ability to care for Gabriel.  In fact, they agree with the district court’s determination that Ashley actually provides the more stable environment that includes Gabriel’s grandparents.

The court also rules in Ashley’s favor in regards to the question of who was Gabriel’s primary caregiver.  The court finds that both parties are capable of caring for the child.  At trial, Ashley testified that she was in fact the primary caregiver and Dan agreed.

Dan’s argument that the district court relied too heavily upon the proximity of Gabriel to his grandparents also did not survive.  The court discusses the fact that Dan could have chosen to attend school at a University only 3 hours away that offers the same program that he is enrolled in at the University of Wyoming.  They find that although Ashley’s plans may change, at the present time, she is planning to remain in Council Bluffs near Gabriel’s extended family.  The court does not believe that the district court placed too much importance on this factor.

Finally, the court finds that although Ashley could have made better efforts at communication on certain issues with Dan, Ashley and Dan have actually been able to work together in the past.  The minor communication glitches do not warrant a finding that Ashley disregards Dan’s role as parent.

Overall, the court of appeals agrees with the district court that it is in the child’s best interest to place physical care of Gabriel with Ashley.  They mention that Dan’s decision to attend school 8 hours away from his extended family tipped the balance in favor of Ashley.

Child Visitation

Just as with child custody, the child’s best interest is the main consideration of the court when ruling on visitation.  Iowa Code section 598.41(1) guides their decision:

598.41  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.

Dan argues that the visitation schedule in the decree fails to maximize contact with both parents.  He requests additional visitation in his appeal.  He also asks for improved telephonic and electronic communication with Gabriel.  Dan also complains that the burdens of travel are placed on him.

In order to provide maximum contact with both parents, the court modifies the decree so Dan receives additional visitation during Thanksgiving and Spring Breaks.  The court also agrees that it would be fair for Ashley to have to share in the expense of Dan traveling to see Gabriel in limited circumstances.

 Child Support

The final issue the court considers is the amount of child support Dan is required to pay.  In Iowa, child support is determined by guidelines set forward by the Iowa Supreme Court.  The court determines both parent’s monthly income to arrive at the amount of child support owed.  The court decides that Dan is capable of working part time despite his demanding school schedule and that the student loans he voluntarily took out may be applied to his monthly income.  The court requires Dan to pay $195.13 in child support.

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Actress Katie Holmes filed for divorce from her husband of 5 years, Tom Cruise, last Thursday.   The pair met and married quickly and have been the subject of Hollywood speculation for the duration of their relationship.  Holmes, 33, has one 6 year old daughter, Suri, with Cruise.  Cruise has two adopted children from a previous marriage with actress Nicole Kidman.  It has been reported that Cruise was surprised to learn of Holmes’ filing.  This is the end of Cruise’s 3rd marriage, while Holmes’ first.

Fault vs. No Fault Divorce

Holmes filed for divorce in the state of New York.  There has been much speculation as to her motivation for filing in a “fault” divorce state.  In New York and other states that allow a petitioner to file for divorce on fault-based grounds.  In New York, you may file for a fault-based divorce based on several  grounds:

  • Cruel and Inhuman Treatment
    • Physical, verbal or emotional abuse that endangers your physical or mental well being.
    • The judge will look for occurrences in the last 5 years.
  • Abandonment
    • Your spouse must have abandoned you for a period of one or more years.
    • “Constructive Abandonment” is applicable if your spouse has refused to engage in sexual relations with you for a period of at least one year.
  • Three Consecutive Year Imprisonment
    • The imprisonment must begin after the marriage and last for a period of 3 consecutive years.
  • Adultery
    • Must be able to show that your spouse committed adultery during the marriage, which can prove to be difficult.

In Holmes’ and Cruise’s case, there is, of course, much speculation as to why Holmes would have filed in New York.  Many believe that Cruise’s intense commitment to Scientology may have played a role in their split.  In the petition, Holmes has claimed that the couple is unable to continue the marriage because of irreconcilable differences.  Cruise is expected to file a response in New York requesting the proceedings be moved to California.

Cruise and Holmes have a pre-nuptial agreement, so financial considerations will most likely not be a major issue in their divorce.  Holmes could challenge the agreement, however, the main issue will almost certainly be custody of their daughter.  Holmes has filed for sole custody of Suri along with an “appropriate” child support amount.

Iowa:  a No Fault Divorce State

Iowa is considered a no-fault divorce state.  The Iowa Code addresses dissolution of marriage in Chapter 598.

Officially called “dissolution of marriage” in Iowa, a divorce will be granted when there is evidence of a breakdown of the relationship with no likelihood it can be preserved.  There is no requirement for a spouse to place blame on the other spouse.  After filing for dissolution, a judge may require the couple to participate in conciliation efforts for a period of up to 60 days.  For example, Polk county requires the couple to participate in mediation.  Iowa Code section 598.7 addresses this requirement.  Also, there is a 90 day waiting period in Iowa from the time of filing until a judge can issue a final decree, although this requirement may be waived under certain circumstances.

It remains to be seen just how nasty Tom Cruise and Katie Holme’s divorce will be, however, we can be assured that whatever happens, there will be intense media coverage of every detail!

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