Opinion
No. 3-999 / 03-0840
Filed February 11, 2004
Appeal from the Iowa District Court for Clinton County, David H. Sivright, Jr., Judge.
Appellant appeals an award of physical care of her son, Michael, to his father, the appellee. She further contends the district court should not have changed his surname. AFFIRMED.
Steven Berger of Wehr, Berger, Lane Stevens, Davenport, for appellant.
Richard Farwell and Christopher Farwell of Farwell Bruhn, Clinton, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Appellee, Mohammad Hossain Asaadi, and appellant, Jennifer J. Smith, are the parents of a child Michael Javaad born December 17, 1999. On Mohammad's petition, the district court made Mohammad responsible for his primary physical care, and provided that the child be called Michael Javaad Asaadi. Jennifer has appealed, contending the district court applied the wrong standard; that she, not Mohammad, should be Michael's primary physical custodian; and his name should remain Michael Smith. We affirm.
On July 19, 2000 Mohammad filed a petition contending he was Michael's natural father, requesting visitation, seeking a change of Michael's last name from Smith to Asaadi, and seeking the tax exemption for Michael. On September 9, 2000, with Mohammad's consent, the district court entered an order establishing Mohammad's paternity and fixing his obligation for temporary child support. On December 1, 2000 the district court entered an order establishing Mohammad's child support, allowing him to claim Michael as a tax exemption on federal and state returns, denying Mohammad's request to change Michael's last name, and fixing Mohammad's visitation.
On May 20, 2001 Mohammad filed a petition for change of physical care, contending Jennifer was not taking proper care of Michael, the circumstances had changed, and he should be granted physical care. After hearing evidence the district court granted the relief Mohammad sought, and in doing so considered the matter as an original custody determination not a modification action. The district court also ordered that Michael's surname be Assadi.
We first address Jennifer's contention the district court should have considered this a modification action not an original custody action. This was the first time that custody of the child was litigated. Jennifer argues it was implicit in the December 1, 2000 filing fixing Mohammad's child support and visitation that she was established as Michael's custodial parent. Consequently, Jennifer contends this is a modification action and Mohammad has a heavier burden than the one imposed on him by the district court.
Iowa Code 600B.40 (2001) provides:
The mother of a child born out of wedlock whose paternity has not been acknowledged and who has not been adopted has sole custody of the child unless the court orders otherwise. If a judgment of paternity is entered, the father may petition for rights of visitation or custody in an equity proceedings separate from any action to establish paternity.
Formerly Iowa Code section 675.40.
The paternity decree did not decide the issue of custody. The right to petition for custody is available to Mohammad in other equitable proceedings. The district court correctly treated this as an original custody determination. See Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988).
We next address Jennifer's contention the evidence did not support the award of custody to Mohammad. The controlling consideration in determining custody is the interest of the child. Iowa R. App. P. 6.14(6)( o). In deciding this question, we review the record de novo. Iowa R. App. P. 6.4. We give weight to the findings of the trial court, but are not bound by them. See In re Marriage of Novak, 220 N.W.2d 592, 597 (Iowa 1974). There is no presumption favoring one party as opposed to the other in deciding which one should have custody. See In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974). We determine each case on its own facts to decide which parent can minister more effectively to the long-range interest of the child. In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974). The critical issue is determining which parent will do better in raising the child; gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody in an original custody proceeding. See In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct. App. 1985). The criteria governing a custody decision is the same regardless of whether the parties are dissolving their marriage or are unwed. Lambert, 418 N.W.2d at 42; Petition of Purscell, 544 N.W.2d 466, 468 (Iowa Ct. App. 1995).
At the time of the hearing Jennifer was twenty-seven years old. Michael was her fourth child. Jennifer has never been married and has three daughters aged twelve, ten and six. Each of the girls has a different father. Jennifer was living in her own home in Clinton, Iowa, and much to her credit, attending Mt. St. Clare College in Clinton. She hopes to graduate at the end of 2004. She made the dean's list during the fall semester of 2002. Her daughters were doing fine in school, though one has some difficulty with reading. In addition to attending classes, Jennifer works four days a week from 10 p.m. to 8 a.m. at a care center in Charlotte, Iowa.
Jennifer's mother cares for her children when she is absent from the home. Jennifer's mother is a licensed child care provider. Jennifer lived with her for some time after Michael was born. The district court found, and the evidence supports, that at times Jennifer's mother's home was ill-kempt. The court also found a current concern that Jennifer's brother Timothy lives with her mother and in December of 2002 was convicted of possession of marijuana. Though Timothy was in treatment, apparently allowing him to reside in the home having a drug conviction violates the requirement of Jennifer's mother's state child care license. Michael has a bronchial condition, and at the suggestion of Michael's pediatrician, Mohammad quit smoking while Jennifer and her mother continue to smoke around the child. Michael has experienced a number of physical injuries in his mother's care. We agree with the district court's conclusion that while the injuries, including bruises, scratches and bites, probably were not intentional, they are evidence of the lack of good supervision of the young child.
Mohammed has concerns that if Michael is in his mother's custody he will have difficulty seeing the child. The district court found Michael's concerns were justified and we agree.
At time of trial Mohammad was forty-three. Born in Iran, he emigrated to the United States in 1984. He is a cook in a Clinton, Iowa restaurant owned by his brother. He has his own home which is well kept. He works from 3 p.m. to midnight six days a week. He has a twelve-year-old child who is in his mother's care. Mohammad has a close relationship with this child as he also does with Michael.
We have considered all of Jennifer's arguments as well as the well-reasoned and complete decision of the district court. We find no reason to disagree with the custody award the district court made and it is affirmed.
The district court changed Michael's last name stating, "[b]ased upon the findings of facts in this ruling and the award of primary physical care to Mohammad the Court finds it appropriate to change Michael's surname to Asaadi."
Jennifer first contends that her due process rights were violated because she did not have notice the name change was to be considered by the district court and the issue of the name change was litigated in prior proceedings.
Mohammad contends the district court has the right to make the name change under the general equitable powers of section 598.41, and we agree. As this is an original custody determination and Michael will be living primarily in his father's home, we find no reason to disagree with the district court's decision to change the child's name to his father's surname and affirm on this issue.