Iowa Divorce and Family Law

No Absolute Right to Children's Medical/Therapy Records

Today's Iowa Supreme Court decision in Harder v. Anderson, Arnold, Arnold, Dicket Jensen Gullickson and Sanger, L.L.P. et al, available online here, holds that parents who are joint legal custodians do not have an absolute right to obtain copies of their children's medical, counselling, and therapy records.

The case arose when a parent sent a valid authorization to release records to her children's counsellor.  The counsellor refused to release verbatim copies of the records, but offered to meet with the parent to discuss the children's treatment.  The parent apparently refused these offers from the therapist and instead chose to file suit for a mandatory injunction requiring release of the written records.

The decision holds that the joint legal custodial rights granted by Iowa Code Chapter 598 do not mandate or require disclosure of this information to parents.  Further, the best interests of the child always take precendence over the parent's legal rights in the event of a conflict between the two.  Under the particular facts of this case as applied to that legal principle, the court found that the children's best interests were in fact protected by not releasing the information.

Schott v. Schott - No Collateral Attack on Prior "Second Parent" Adoption

Today's Iowa Supreme Court decision in Schott v. Schott, available in PDF format here, concerns prior "second parent adoptions" issued by an Iowa court and another Iowa court's subsequent collateral attack on the validity of the adoptions in a later child custody proceeding.  In the case, the two female parties obtained valid, unappealed, and unchallenged Iowa adoptions to two children.  One of the parties is the biological parent of both children; the other party legally adopted both of Jamie's children.  Subsequently, the parents' relationship deteriorated and each parent asserted claims of custody/visitation with the trial court.

The opinion indicates that there was no question that the prior, underlying adoptions were properly obtained, as all necessary consents given, and that neither party, nor any third-party, challenged the validity of or the authority of the adoption court to grant the adoptions at that time.  In fact, this case is unusual in that neither party ever contested the validity of the adoptions.  The appeal arose only when a subsequent Iowa court in 2007 raised the issue of subject matter jurisdiction in the custody/visitation case approximately three years after the 2004 adoption of the youngest child.   (The older child's adoption occurred in 2001).  It is unclear from the opinion how the issue of custody was presented to the trial court, but the opinion does hold that Iowa trial courts, being courts of general jurisdiction in both law and equity, have "inherent power and jurisdiction in all proceedings involving custody and care of minor children."  Both parties appealed the district court's dismissal of the case on the basis that because Heather's adoptions of Jamie's children were contrary to Iowa law and therefore invalid, the district court lacked subject matter jurisdiction to consider any custodial/visitation issue concerning the children. 

The Iowa Supreme Court held that it was reversible error for the district court to collaterally attack and invalidate the prior adoptions.  While the district court may have disagreed with the finding of the earlier adoption court that a "second parent" adoption is permitted under Iowa law, the adoptions remained lawful and valid as "an adoption may be only be collaterally attacked if the district court granting the adoption lacked jurisdiction over the person or subject matter, or on due process grounds by a natural parent."  As the Supreme Court found none of those grounds existed, the adoption decrees remained valid and both parties remained legal parents.  Therefore, as legal parents, both parties were entitled to put their claims for custody/visitation before the court.

The Schott decision appears to be limited to situations involving existing, final "second parent" adoptions, as the Court expressly held it "need not decide whether second parent adoptions are permissible in Iowa for the purposes of this appeal."  Thus, the question posed by the district court in its initial action that gave rise to this appeal reamins unanswered. (i.e., the trial court's interpretation that Iowa's adoption statute "does not allow an unmarried adult to adopt a child without terminating the parental rights of both natural parents").

Schott v. Schott, No. 07-0610, January 18, 2008.  (last accessed 1/18/08)

Children's Representative in Custody Cases

The Anderson case from the Iowa Court of Appeals last week contains an interesting discussion about the differences between a "guardian ad litem" and an "attorney" appointed to represent children under Iowa Code 598.12. As the Anderson case illustrates, there are considerable differences between the rights and responsibilities of a guardian ad litem and an attorney appointed to represent the children.

The approach and terminology set forth in Section 598.12 has been abandoned as outdated by many child-advocate organizations and several states. Instead, a much more contemporary and practical approach is recommended by the ABA. The current model statute, which Iowa should adopt, can be found here. Even a quick read of the model statute begins to expose some of the problems of current Iowa law. The title of the act alone ("Uniform Representation") references an issue that occurred in the Anderson case - the lack of an order that clearly distinguishes the differences between a "GAL" and "best interests" advocate (attorney or not) in each case. The model act would go a long way to ensuring the best interests of Iowa's children are being met once their parents cannot agree and court involvement is necessary.

No "presumption" or "preference" for Joint Physical Care

The Iowa Supreme Court today issued its first opinion discussing the impact of the 2004 legislative changes to Iowa's child custody law.  The case is In re Marriage of Hansen.  In a lengthy (40 page) decision, the Court holds that "the 1997 and 2004 legislation did not create a presumption in favor of joint physical care.  There is simply nothing in the language of the amendments that supports such an assertion." 

The opinion is also notable for its extensive citations to social science research and studies.  The Court sums up this research as follows: "At present, the available empirical studies simply do not provide a firm basis for a dramatic shift that would endorse joint physical care as the norm in child custody cases." 

The decision emphasizes "stability and continuity of caregiving" as "important factors that must be considered in custody and care decisions."  The Court goes on to note its endorsement of, but not wholesale adoption of the American Law Institute's "approximation rule," which states that custodial responsibilities should be allocated "so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation...."

The Court also emphasized the "ability of spouses to communicate and show mutual respect" as a "second important factor" in determining the appropriateness of joint physical care. 

In sum, the opinion is a clear rejection of the arguments that joint physical care is a "preferred" custodial award following the 2004 legislative amendments to Chapter 598.

How not to win a custody dispute....Celebrity Style

Judging by the front cover of most issues of People magazine, it seems that every week we have yet another silly celebrity break-up and custody fight inflicted upon us. The vast majority aren't worth mentioning, But this week's news provides a concrete, real-life example of how to lose a child custody dispute with just one simple phone call.

It has been widely reported that Alec Baldwin left a voicemail for his 11 year-old daughter that appears to violate two of the most important rules of custody litigation: 1) Don't put the child in the middle of the parents' dispute; and, 2) If you're going to ignore Rule #1, don't give the other side hard evidence of your inability to distinguish the roles of parent and spouse. That voicemail should be Exhibit #1 in Ms. Basinger's case.

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.

Children's Therapy Records Privileged

The subject of the patient-therapist privilege often comes up in divorce cases. Many times this involves children who are in therapy or counseling to help them deal with issues created as a result of their parent's divorce. A recent trial court ruling in Polk County (Iowa) District Court addressed the issue of whether the children's therapist could maintain the confidentiality of these sessions despite a subpoena served on the therapist for the records. The court's ruling held that parents do not have the absolute right to waive the therapist/client privilege on behalf of their children.

The controversy arose when, in a modification proceeding, the non-custodial mother attempted to subpoena both the therapist and his counseling records regarding her children. The therapist asserted that the records were privileged pursuant to Iowa Code § 622.10(1) and refused to turn over the records or appear for the deposition. The mother then sought to have the therapist held in contempt for failing to appear for the deposition and failing to provide the counseling records pursuant to the subpoena. The Court adopted the reasoning set forth in Berg v. Berg, 886 A.2d 980, 986-87 (N.H. 2005), in which the New Hampshire Court held that, "the weight of authority…supports protection for the therapy records of children who are at the center of a custody dispute or whose interests may be in conflict with those of their natural guardians." The Court then held that courts have the authority and discretion to determine whether the attempted assertion or waiver of the privilege on behalf of a child is in the child's best interests. As in Berg, the Iowa trial court concluded that preservation of the privilege is essential in preserving the children's effective access to therapy. The particular outcome of this case relates to a very specific set of circumstances and facts that will be different in every case.

As post-trial motions are pending, including a request by the mother for the court to reconsider this particular ruling, it remains to be seen whether the ruling will be appealed. A copy of the ruling is available here in PDF format thanks to Lora McCollom, the therapist's attorney.

"Defense of Marriage Act," Child Custody, and Civil Unions - The Virginia Answer

In a case that has been closely watched, the Virginia Court of Appeals has issued an opinion that Virginia must give full faith and credit under the Parental Kidnapping Prevention Act ("PKPA" to a custody determination made by a Vermont court growing out of a Vermont civil union, in spite of the Virginia "Marriage Affirmation Act." The opinion holds that the federal "Defense of Marriage of Act" (DOMA) does not create an exception to the PKPA and that both statutes must be given effect. The opinion includes no discussion about the relationship between Virginia's Marriage Affirmation Act and Virginia's version of the UCCJEA.

Child's Surname in Paternity Actions

The Iowa Court of Appeals recently held that Iowa paternity statute gives a court jurisdiction to order that a child be given his/her father's surname. Technically, these actions do not involve a name "change" simply because the mother has given the child a name on the birth certificate. "When a parent unilaterally chooses a child's name, the other parent may request the court to examine the name issue--as the mother does not have the absolute right to name the child because of custody due to birth. Consequently, she should gain no advantage from her unilateral act in naming the child."

The court ordered that the 14-month-old child should be given Father's surname as Mother was planning on remarrying and changing her name. Montgomery v. Wells (November 9, 2005).

No Preference for Joint Physical Care

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).