In the first appellate decision squarely addressing the effect of the 2004 joint physical care statutory amendments, the Iowa Court of Appeals has held that the 2004 amendment to 598.41(5) does not create a "preferred custodial arrangement." In re Marriage of Ellis, 9/14/2005. The court held:
We thus believe that [the 1997 598.41(5) amendments] disavowed the general bias against joint physical care, finding it to be a viable disposition provided it is in the best interest of the affected child or children and the parents are able to appropriately communicate and cooperate.We disagree, however, with [father]’s argument that following the 2004 amendment joint physical care is a preferred custodial arrangement. The 1997 legislation for the first time defined “joint physical care,” see 1997 Iowa Acts ch. 175, § 183 (now codified at Iowa Code § 598.1(4) (2005)), and the 1997 amendment to section 598.41(5) repeatedly employed the permissive term “may” when speaking of the court’s ability to award joint physical care. Following the 2004 amendment, section 598.41(5) still provides that the court “may” award joint physical care. The statute’s language following the 1997 amendment, as well as its language following the 2004 amendment, constitutes neither a ringing endorsement of joint physical care, nor a mandate for courts to grant joint physical care unless the best interest of the child requires a different physical care arrangement.(emphasis added).
