Transfer of Custody as Discovery Sanction

In what appears to be a case of first impression in Iowa, the Iowa Court of Appeals reversed the trial court's establishment of primary physical care as a discovery sanction for a party's failure to answer written discovery. The district court imposed the sanction: 1) without establishing a factual basis, and 2) without establishing that the custodial determination was in the child's best interests.

However, the district court should not have proceeded to established primary care without establishing a factual basis for the finding and a determination it was in [the child]’s interest. A child does not lose his or her rights because a parent fails to comply with court rules. See Flynn v. May, 852 A.2d 963, 975 (Md. Ct. Spec. App. 2004). We conclude the court abused its discretion in granting [petitioner] physical care of [the child] upon entry of the default judgment. There was no available evidence to support the custody change. Following the entry of default judgment, the court should not have determined custody without evidence to warrant the judgment. See Iowa R. Civ. P. 1.973(2). In this case, the court should have entertained evidence relating to the best interest of the child." Fenton v. Webb, No. 04-1138.