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February 20, 2007

Joint Legal Custody - A new interpretation?

The Iowa Supreme Court's opinion of In re Marriage of Hynick contains one of the most detailed recitations of how allegations of domestic abuse can affect child custody decisions.  More interesting, however, is the court's unequivocal statement concerning the apparently inferior role assigned to the non-custodial parent:

When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights.  See generally Iowa Code § 598.41(1)(a), (5).  Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care.  See generally id. § 598.1(7). The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent.  See generally Iowa Ct. R. 9.9 (setting forth graduated credits against child support obligation for extraordinary visitation including a twenty-five percent credit for “167 or more [visitation days] but less than equally shared physical care”).  Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.

Whether this decision is the start of a retreat from the principle of equal decision-making by joint legal custodians remains to be seen.  On the one hand, the decision refers solely to decisions involving the child's "routine" care; on the other hand, the stark language of the non-custodial parent being "relegated to the role of hosting the child" calls to mind the image of the non-custodial parent as a mere baby-sitter.  The impact of this case remains to be seen.

Posted on February 20, 2007 in Custody |


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