Posts categorized "Custody"
August 25, 2005
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.
Posted on August 25, 2005 in Custody | Permalink
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Joint Physical Care is a "Viable Option"
The Court of Appeals recently issued its decision in the case of In re Marriage of Munger. Aside from footnote dicta in an earlier 2005 case, this appears to be the first appellate case applying the July 1, 2004, amendment concerning joint physical care: Joint physical care, although once disfavored in our case law, see In re Marriage of Roberts, 545 N.W.2d 342, 343 (Iowa Ct. App. 1996), has been sanctioned by our legislature as a viable option under our dissolution statute. Iowa Code § 598.41(5)
The decision gives little guidance as to the specific legal effect of the statutory amendments (i.e., is there a preference for joint physical care, a preference, a presumption, or nothing it all?). Nor does the decision explain what is required of the trial court if it finds joint physical care not to be in the children's best interests. However, the decision does give practical guidance about what level of communication, cooperation and planning the court might require in order to approve joint physical care requests: In this particular situation, a joint physical care arrangement most effectively serves the best interests of [the children]. Both [parents] possess the attributes of effective and capable parents, willing to engage each other in the concerns affecting the children. Moreover, such an arrangement provides the children with the maximum continuing contact with each parent and allows them to maintain certain continuities in their life. Our legislature has deemed that joint physical care may be, in certain circumstances, a viable option. We find this to be one of those cases.
Posted on August 25, 2005 in Custody | Permalink
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June 08, 2005
Servicemembers Civil Relief Act and Child Custody
In a case involving an apparent conflict between the "best interests" standard the federal Servicemembers Civil Relief Act ("SCRA"), the Iowa Supreme Court has reversed the recent Court of Appeals decision of In re Marriage of Grantham that the SCRA automatic stay prevented a custody modification while a servicemember-parent was deployed. The decision appears to be largely fact-based on the particular circumstances of this case, where concealment of important information by one parent from another may have occurred.
Of import more generally is the affirmance of at least one procedural aspect of the Court of Appeals decision:
We agree with the court of appeals that the filing of the petition to modify the child custody provisions of a dissolution decree does not carry with it a right for the determination of temporary custody pendente lite. Modification proceedings differ from original actions in this regard because, in original actions for dissolution, the parties start out with equal rights to child custody, and their separation creates a need for temporary orders until permanent orders are entered at the conclusion of the litigation. As the court of appeals correctly noted, once child custody has been finally settled in a dissolution decree, the provisions of the decree should continue in force until such time as the decree is modified. No need exists for temporary orders in the interim.
The decision appears to carve out an unstated exception to the rule where, as in this case, the custodial parent is absent and has delegated care-taking responsibilities to a third-party instead of the other parent. This exception should be limited to similar cases where the custodial parent is physically absent from the children, as in a military deployment. It does, however, raise a question as to the validity of military family care plans.
Posted on June 08, 2005 in Custody, Federal Laws-Cases | Permalink
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April 13, 2005
Military Deployments and Family Care Plans
The Des Moines Register recently reported that Iowa, like many other states, has a record number of residents deployed on active military duty. This is having an enormous impact on families and the Iowa Court of Appeals recently addressed in great detail the legal significance of having a "Family Care Plan" in place to provide for the care of a soldier's family when the service member is deployed on active duty. The Family Care Plan and the protections provided by the Servicemembers Civil Relief Act are described in the case of In re Marriage of Grantham, particularly the right to a stay of proceedings while deployed. The Court noted that the United State Supreme Court's 1943 ruling that the Act "is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation" "rings as true today as it did then" during the height of World War II. The Court emphasized that "practically speaking, the Family Care Plan steps in for a soldier; it governs who will exercise the soldier's rights under the decree while the soldier is on active duty. Thus, Family Care Plans take no rights from the other party to the decree; they merely exercise the soldier's rights while on duty."
More generally, the Grantham decision is also significant as it is the first Iowa appellate decision that expressly holds "temporary custody orders are not statutorily authorized on petitions for [custody] modification."
Posted on April 13, 2005 in Custody, Federal Laws-Cases | Permalink
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What are my responsibilities as a primary physical care parent?
This is a question that is frequently asked by many clients. The Iowa Court of Appeals decision in Little provides a clear answer: The parent having physical care "has a responsibility of communicating to the other parent the need to make decisions and making the necessary information available." See also, In re Marriage of Fortelka, 425 N.W.2d 671, 673 (Iowa Ct. App. 1988). This information should be provided by the custodial parent to the non-custodial parent in order to allow the non-custodial parent to exercise his/her right of "equal participation in decisions affecting the child's legal status, medical care, education, extra-curricular activities, and religious instruction." Iowa Code 598.41(5)(b). Both parents have the responsibility to discuss problems concerning the children in these areas with the other parent.
Posted on April 13, 2005 in Custody, FAQ | Permalink
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Parental Discord - Again
Today's decision in Simkins from the Iowa Court of Appeals is yet another example of the consequences of post-dissolution parental discord on child custody. Less than two years after entry of a shared custody decree, both parties apparently admitted that shared care was "unworkable" and each requested primary physical care of the children. The Court of Appeals once again emphasized "that parental discord having a disruptive effect on the children warrants modification of a decree to designate a primary physical caregiver if it appears that the children, by having a primary physical caregiver, will have superior care." The Court also found that the requisite substantial change "has been shown in this case due to the demonstrated failure of the shared physical care arrangement."
Of particular note is that Court reviewed the case "as an initial custody determination" because both parents were found to be suitable as primary caregivers at the time the original decree was entered. The Court reached back into the marriage to make a finding that "during the parties' marriage, [the mother] was the primary care provider for the children" as supportive of her request to be the primary caregiver in the modification.
Posted on April 13, 2005 in Custody | Permalink
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October 14, 2004
Consequences of Hostility Toward Other Parent
In re Marriage of Simms discusses the ramifications of "hostile conduct" by one parent (or his/her extended family) against the other in the context of a custody dispute:
We, as did the district court, find that Marianne and her family impede Joel’s relationship with the children. Where one parent seeks to portray another in an unfavorable light, that fact is considered in assessing who should have primary physical care. See In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct. App. 1991). The hostile conduct need not come only from the custodial parent. See In re Marriage of Crotty, 584 N.W.2d 714, 716-717 (Iowa Ct. App. 1998) (conduct of mother’s parents considered); In re Marriage of Rosenfeld, 524 N.W.2d 212, 215-16 (Iowa Ct. App. 1994) (conduct of stepmother considered). Marianne has a responsibility to assure her parents and siblings will not interfere with Joel’s relationship with the children. See Crotty, 584 N.W.2d at 717. We consider the fact that she seems unable to exercise this responsibility. We affirm the custody decision of the district court.
The decision also discusses the negative consequences that can occur as a result of "orchestrated" claims of domestic abuse in custody litigation.
Posted on October 14, 2004 in Custody | Permalink
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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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February 23, 2004
Children in the Middle: Do's and Don'ts
In divorce or any other legal proceeding concerning child custody, Iowa courts require both parent to attend the "Children in the Middle" program to become aware of how children are affected by custody disputes and divorce. Here are a few "Do's and Don'ts" on how to minimize the impact of divorce on children:
1. Put your children's welfare first. Never use a child as a weapon against your spouse. 2. Be sure your children have ample time with the other parent. They need it. 3. Don't introduce your children to your new romantic interest until the children have adjusted to the divorce, separation from the other parent, and your new relationship is stable. 4. Don't bring your children to court or to meetings with your attorney. 5. Keep to the schedule. Give the other parent and the children as much notice as you can when you will not be able to keep to the schedule. Be considerate. 6. Be flexible. You may both need to adjust the schedule from time to time. 7. Giving of yourself is more important than giving material things to the children. 8. Do not use your spouse as spies to report on the activities of the other parent. 9. Do not use the children to deliver messages or act as couriers to the other parent. 10. Avoid arguments or confrontations while dropping off or picking up the children or whenever children are present. 11. Don't listen in on your children's phone calls with the other parent. 12. Maintain your composure and try to keep a sense of humor. Your children's behavior is affected by your attitude and conduct. 13. Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent. 14. Don't criticize the other parent in front of your children. Your children need to respect both parents.
Posted on February 23, 2004 in Custody, FAQ | Permalink
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August 25, 2005
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.
Posted on August 25, 2005 in Custody | Permalink
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Joint Physical Care is a "Viable Option"
The Court of Appeals recently issued its decision in the case of In re Marriage of Munger. Aside from footnote dicta in an earlier 2005 case, this appears to be the first appellate case applying the July 1, 2004, amendment concerning joint physical care: Joint physical care, although once disfavored in our case law, see In re Marriage of Roberts, 545 N.W.2d 342, 343 (Iowa Ct. App. 1996), has been sanctioned by our legislature as a viable option under our dissolution statute. Iowa Code § 598.41(5)
The decision gives little guidance as to the specific legal effect of the statutory amendments (i.e., is there a preference for joint physical care, a preference, a presumption, or nothing it all?). Nor does the decision explain what is required of the trial court if it finds joint physical care not to be in the children's best interests. However, the decision does give practical guidance about what level of communication, cooperation and planning the court might require in order to approve joint physical care requests: In this particular situation, a joint physical care arrangement most effectively serves the best interests of [the children]. Both [parents] possess the attributes of effective and capable parents, willing to engage each other in the concerns affecting the children. Moreover, such an arrangement provides the children with the maximum continuing contact with each parent and allows them to maintain certain continuities in their life. Our legislature has deemed that joint physical care may be, in certain circumstances, a viable option. We find this to be one of those cases.
Posted on August 25, 2005 in Custody | Permalink
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June 08, 2005
Servicemembers Civil Relief Act and Child Custody
In a case involving an apparent conflict between the "best interests" standard the federal Servicemembers Civil Relief Act ("SCRA"), the Iowa Supreme Court has reversed the recent Court of Appeals decision of In re Marriage of Grantham that the SCRA automatic stay prevented a custody modification while a servicemember-parent was deployed. The decision appears to be largely fact-based on the particular circumstances of this case, where concealment of important information by one parent from another may have occurred.
Of import more generally is the affirmance of at least one procedural aspect of the Court of Appeals decision:
We agree with the court of appeals that the filing of the petition to modify the child custody provisions of a dissolution decree does not carry with it a right for the determination of temporary custody pendente lite. Modification proceedings differ from original actions in this regard because, in original actions for dissolution, the parties start out with equal rights to child custody, and their separation creates a need for temporary orders until permanent orders are entered at the conclusion of the litigation. As the court of appeals correctly noted, once child custody has been finally settled in a dissolution decree, the provisions of the decree should continue in force until such time as the decree is modified. No need exists for temporary orders in the interim.
The decision appears to carve out an unstated exception to the rule where, as in this case, the custodial parent is absent and has delegated care-taking responsibilities to a third-party instead of the other parent. This exception should be limited to similar cases where the custodial parent is physically absent from the children, as in a military deployment. It does, however, raise a question as to the validity of military family care plans.
Posted on June 08, 2005 in Custody, Federal Laws-Cases | Permalink
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April 13, 2005
Military Deployments and Family Care Plans
The Des Moines Register recently reported that Iowa, like many other states, has a record number of residents deployed on active military duty. This is having an enormous impact on families and the Iowa Court of Appeals recently addressed in great detail the legal significance of having a "Family Care Plan" in place to provide for the care of a soldier's family when the service member is deployed on active duty. The Family Care Plan and the protections provided by the Servicemembers Civil Relief Act are described in the case of In re Marriage of Grantham, particularly the right to a stay of proceedings while deployed. The Court noted that the United State Supreme Court's 1943 ruling that the Act "is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation" "rings as true today as it did then" during the height of World War II. The Court emphasized that "practically speaking, the Family Care Plan steps in for a soldier; it governs who will exercise the soldier's rights under the decree while the soldier is on active duty. Thus, Family Care Plans take no rights from the other party to the decree; they merely exercise the soldier's rights while on duty."
More generally, the Grantham decision is also significant as it is the first Iowa appellate decision that expressly holds "temporary custody orders are not statutorily authorized on petitions for [custody] modification."
Posted on April 13, 2005 in Custody, Federal Laws-Cases | Permalink
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What are my responsibilities as a primary physical care parent?
This is a question that is frequently asked by many clients. The Iowa Court of Appeals decision in Little provides a clear answer: The parent having physical care "has a responsibility of communicating to the other parent the need to make decisions and making the necessary information available." See also, In re Marriage of Fortelka, 425 N.W.2d 671, 673 (Iowa Ct. App. 1988). This information should be provided by the custodial parent to the non-custodial parent in order to allow the non-custodial parent to exercise his/her right of "equal participation in decisions affecting the child's legal status, medical care, education, extra-curricular activities, and religious instruction." Iowa Code 598.41(5)(b). Both parents have the responsibility to discuss problems concerning the children in these areas with the other parent.
Posted on April 13, 2005 in Custody, FAQ | Permalink
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Parental Discord - Again
Today's decision in Simkins from the Iowa Court of Appeals is yet another example of the consequences of post-dissolution parental discord on child custody. Less than two years after entry of a shared custody decree, both parties apparently admitted that shared care was "unworkable" and each requested primary physical care of the children. The Court of Appeals once again emphasized "that parental discord having a disruptive effect on the children warrants modification of a decree to designate a primary physical caregiver if it appears that the children, by having a primary physical caregiver, will have superior care." The Court also found that the requisite substantial change "has been shown in this case due to the demonstrated failure of the shared physical care arrangement."
Of particular note is that Court reviewed the case "as an initial custody determination" because both parents were found to be suitable as primary caregivers at the time the original decree was entered. The Court reached back into the marriage to make a finding that "during the parties' marriage, [the mother] was the primary care provider for the children" as supportive of her request to be the primary caregiver in the modification.
Posted on April 13, 2005 in Custody | Permalink
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October 14, 2004
Consequences of Hostility Toward Other Parent
In re Marriage of Simms discusses the ramifications of "hostile conduct" by one parent (or his/her extended family) against the other in the context of a custody dispute:
We, as did the district court, find that Marianne and her family impede Joel’s relationship with the children. Where one parent seeks to portray another in an unfavorable light, that fact is considered in assessing who should have primary physical care. See In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct. App. 1991). The hostile conduct need not come only from the custodial parent. See In re Marriage of Crotty, 584 N.W.2d 714, 716-717 (Iowa Ct. App. 1998) (conduct of mother’s parents considered); In re Marriage of Rosenfeld, 524 N.W.2d 212, 215-16 (Iowa Ct. App. 1994) (conduct of stepmother considered). Marianne has a responsibility to assure her parents and siblings will not interfere with Joel’s relationship with the children. See Crotty, 584 N.W.2d at 717. We consider the fact that she seems unable to exercise this responsibility. We affirm the custody decision of the district court.
The decision also discusses the negative consequences that can occur as a result of "orchestrated" claims of domestic abuse in custody litigation.
Posted on October 14, 2004 in Custody | Permalink
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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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February 23, 2004
Children in the Middle: Do's and Don'ts
In divorce or any other legal proceeding concerning child custody, Iowa courts require both parent to attend the "Children in the Middle" program to become aware of how children are affected by custody disputes and divorce. Here are a few "Do's and Don'ts" on how to minimize the impact of divorce on children:
1. Put your children's welfare first. Never use a child as a weapon against your spouse. 2. Be sure your children have ample time with the other parent. They need it. 3. Don't introduce your children to your new romantic interest until the children have adjusted to the divorce, separation from the other parent, and your new relationship is stable. 4. Don't bring your children to court or to meetings with your attorney. 5. Keep to the schedule. Give the other parent and the children as much notice as you can when you will not be able to keep to the schedule. Be considerate. 6. Be flexible. You may both need to adjust the schedule from time to time. 7. Giving of yourself is more important than giving material things to the children. 8. Do not use your spouse as spies to report on the activities of the other parent. 9. Do not use the children to deliver messages or act as couriers to the other parent. 10. Avoid arguments or confrontations while dropping off or picking up the children or whenever children are present. 11. Don't listen in on your children's phone calls with the other parent. 12. Maintain your composure and try to keep a sense of humor. Your children's behavior is affected by your attitude and conduct. 13. Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent. 14. Don't criticize the other parent in front of your children. Your children need to respect both parents.
Posted on February 23, 2004 in Custody, FAQ | Permalink
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