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September 29, 2004
How is custody determined?
The overriding factor for determining child custody is the children's "best interests." Admittedly, this is a nebulous and vague standard that is probably incapable of precise definition from either a scientific or legal viewpoint. The court's objective "is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity." Specific statutory factors are stated in Iowa Code 598.41(3) (2003). The seminal case of In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974) expands upon the stautory factors. These factors are applied to the particular facts of any given case to determine which parent most closely meets the children's "best interests."
Posted on September 29, 2004 in Custody, FAQ | Permalink
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Impact of Possible Future Relocation of Parent
In re Marriage of Perry discusses at length the impact of a possible future interstate relocation by one parent on child custody in an original custody order:
The right of interstate travel is a basic constitutional freedom. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S. Ct. 1076, 1080, 39 L. Ed. 2d 306, 312 (1974). Any infringement upon the fundamental right to travel must be justified by a compelling state interest. Id. at 258, 94 S. Ct. at 1082, 39 L. Ed. 2d at 315. While the court cannot foreclose in advance the right of a custodial parent to move elsewhere, it can set forth provisions to protect the rights of the non-custodial parent in such an event. In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982). To temper the custodial parent's decision to move following the entry of a dissolution decree, Iowa Code section 598.21(8A) provides that a move one hundred fifty miles or more from the residence of the child at the time of the original decree may be considered a substantial change of circumstances. Iowa Code § 598.21(8A) (2001). The purpose of this section is to maintain the relationship of the child with the non-custodial parent. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998).
The trial court is obligated to make a decision on physical care based upon the facts existing as of trial, not on speculation on "whether a parent may move at some future date." The remedy for the non-custodial parent if the custodial parent later does in fact relocate is to file a modification of the dissolution decree. See, Iowa Code § 598.21(8A).
Posted on September 29, 2004 in Custody | Permalink
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Establishing Value at Trial
In re Marriage of Hoakison illustrates the importance of establishing property values for equitable distribution purposes at trial. The trial court noted, "The Court is unable to make a determination as to the value of hte home and determination of the value of the camper." Nonetheless, the trial court entered what it believe to be an equitable distribution of all property.
On appeal, the Court of Appeals noted:
Since the trial court did not make a finding as to values, the net property distribution is unclear from the court’s ruling. This court said in Bonnette, 584 N.W.2d at 714:
The reason we underscore the importance of assigning values and setting forth the net property distribution is two-fold: (1) to enable the reviewing court to assess whether an equitable division of property was affected; and (2) to aid the parties in better understanding their respective property awards, which would, in some cases, dispense with the need for an appeal.
Posted on September 29, 2004 in Property Distribution | Permalink
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September 24, 2004
Revisions to Child Support Guidelines
The Iowa Supreme Court has issued amended Child Support Guidelines effective November 1, 2004. The amendments and the review committee's report are available on the Iowa Supreme Court's website.
The most significant changes are:
1. An increase in the upper income amounts encompassed by the Guidelines to $10,000/month for each parent, up from $6,000/month. 2. A 10% reduction to each of the Extraordinary Visitation credits, thereby reducing the reductions to 15%-20%-25% respectively. 3. Addition of express provisions requiring the use of the "offset" method when calculating child support for joint and split/divided physical care cases.
The changes are significant and would appear in many cases to translate into significant changes in the amount of child support that could be owed. Under Iowa law, a modification of support may be warranted when the amount of support owed under the new guidelines differs upwards or downwards by at least 10% from the amount currently ordered.
Posted on September 24, 2004 in Child Support | Permalink
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Main
| October 2004 »
September 29, 2004
How is custody determined?
The overriding factor for determining child custody is the children's "best interests." Admittedly, this is a nebulous and vague standard that is probably incapable of precise definition from either a scientific or legal viewpoint. The court's objective "is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity." Specific statutory factors are stated in Iowa Code 598.41(3) (2003). The seminal case of In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974) expands upon the stautory factors. These factors are applied to the particular facts of any given case to determine which parent most closely meets the children's "best interests."
Posted on September 29, 2004 in Custody, FAQ | Permalink
|
TrackBack (0)
Impact of Possible Future Relocation of Parent
In re Marriage of Perry discusses at length the impact of a possible future interstate relocation by one parent on child custody in an original custody order:
The right of interstate travel is a basic constitutional freedom. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S. Ct. 1076, 1080, 39 L. Ed. 2d 306, 312 (1974). Any infringement upon the fundamental right to travel must be justified by a compelling state interest. Id. at 258, 94 S. Ct. at 1082, 39 L. Ed. 2d at 315. While the court cannot foreclose in advance the right of a custodial parent to move elsewhere, it can set forth provisions to protect the rights of the non-custodial parent in such an event. In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982). To temper the custodial parent's decision to move following the entry of a dissolution decree, Iowa Code section 598.21(8A) provides that a move one hundred fifty miles or more from the residence of the child at the time of the original decree may be considered a substantial change of circumstances. Iowa Code § 598.21(8A) (2001). The purpose of this section is to maintain the relationship of the child with the non-custodial parent. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998).
The trial court is obligated to make a decision on physical care based upon the facts existing as of trial, not on speculation on "whether a parent may move at some future date." The remedy for the non-custodial parent if the custodial parent later does in fact relocate is to file a modification of the dissolution decree. See, Iowa Code § 598.21(8A).
Posted on September 29, 2004 in Custody | Permalink
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Establishing Value at Trial
In re Marriage of Hoakison illustrates the importance of establishing property values for equitable distribution purposes at trial. The trial court noted, "The Court is unable to make a determination as to the value of hte home and determination of the value of the camper." Nonetheless, the trial court entered what it believe to be an equitable distribution of all property.
On appeal, the Court of Appeals noted:
Since the trial court did not make a finding as to values, the net property distribution is unclear from the court’s ruling. This court said in Bonnette, 584 N.W.2d at 714:
The reason we underscore the importance of assigning values and setting forth the net property distribution is two-fold: (1) to enable the reviewing court to assess whether an equitable division of property was affected; and (2) to aid the parties in better understanding their respective property awards, which would, in some cases, dispense with the need for an appeal.
Posted on September 29, 2004 in Property Distribution | Permalink
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September 24, 2004
Revisions to Child Support Guidelines
The Iowa Supreme Court has issued amended Child Support Guidelines effective November 1, 2004. The amendments and the review committee's report are available on the Iowa Supreme Court's website.
The most significant changes are:
1. An increase in the upper income amounts encompassed by the Guidelines to $10,000/month for each parent, up from $6,000/month. 2. A 10% reduction to each of the Extraordinary Visitation credits, thereby reducing the reductions to 15%-20%-25% respectively. 3. Addition of express provisions requiring the use of the "offset" method when calculating child support for joint and split/divided physical care cases.
The changes are significant and would appear in many cases to translate into significant changes in the amount of child support that could be owed. Under Iowa law, a modification of support may be warranted when the amount of support owed under the new guidelines differs upwards or downwards by at least 10% from the amount currently ordered.
Posted on September 24, 2004 in Child Support | Permalink
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