Opinion
No. 3-054 / 02-1039
Filed May 14, 2003
Appeal from the Iowa District Court for Plymouth County, Gary E. Wenell, Judge.
Terrance Kayser, father, appeals a district court ruling awarding primary physical care of minor child to mother. AFFIRMED.
Thomas Vakulskas of Vakulskas Law Firm, P.C., Sioux City, for appellant.
R. Scott Rhinehart of Richard Rhinehart Associates, L.L.P., Sioux City, for appellee.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
Terrance Kayser appeals the district court's decision to grant his former wife, Debra, the physical care of the parties' minor child. We affirm.
Background Facts . Terrance Kayser (Terry) and Debra Thompson were married in January 1987. The couple has one child, Daniel, born in 1987. The marriage was dissolved by decree dated August 25, 1995. The decree ordered joint custody with shared physical care of Daniel, alternating every two weeks with Debra and Terry. In December 1998, Debra filed a modification action which the district court dismissed for want of a material change in circumstances. On June 6, 2002, Terry filed a modification action seeking physical care of Daniel. The parties stipulated that the failure of the shared physical care arrangement was a material change in circumstances. Therefore, the district court determined physical care as if the action was an initial proceeding.
Prior to Terry filing the modification petition, Daniel began having problems at school, i.e., failing grades and disruptive outbursts. Daniel's teachers suggested counseling and tutoring. Counseling was also recommended by Dr. Marandola after Daniel was diagnosed as borderline ADHD. While Daniel expressed a preference to live with Terry, the district court found that Daniel's best interests were served by granting Debra physical care. Terry appeals.
Scope of Review . We conduct a de novo review of decisions regarding custody and physical care. Iowa R.App.P. 6.4; In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We give deference to, but are not bound by, the findings of the district court. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). This is particularly true regarding issues of credibility, given the district court's opportunity to directly observe witness demeanor. Id.
Physical Care . In determining which parent should be granted physical care, our overriding consideration is the child's best interests. Iowa R.App.P. 6.14(6)( o); In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). The goal is to select the environment most likely to cultivate a physically, mentally, and socially healthy child. See Murphy, 592 N.W.2d at 683. We consider a number of factors, including the children's needs and characteristics, the parents' abilities to meet the children's needs, the nature of each proposed home environment, and the effect of continuing or disrupting the children's current status. SeeIowa Code § 598.41 (2001); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).
In deciding to award physical care to Debra, the district court made several factual findings relevant to the above criterion. Specifically, the district court found that Debra provided consistent discipline for Daniel when he did not perform chores or complete school assignments and Debra took Daniel's need for counseling more seriously than Terry, who attributed Daniel's disruptive conduct as typical teenage boy behavior.
The court also addressed Daniel's preference to live with his father. Daniel testified that he had more fun with his father and they were involved in more activities together. The court appropriately applied the factors supplied in In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct.App. 1987), and found that Daniel's preference carried little weight under the circumstances.
In determining custody issues, gender of the parents is irrelevant. See In re Marriage of Barry, 588 N.W.2d 711, 712 (Iowa Ct.App. 1998). Terry contends that the district court awarded physical care to Debra simply because she is Daniel's mother. This is not an accurate reflection of the record. The district court based its decision upon finding Debra to be the more appropriate parent to provide structure and discipline for Daniel, regardless of gender.
The record supports these findings and we agree Daniel's best interests are served by placing him in Debra's physical care. We therefore affirm the decision of the district court.
AFFIRMED.
Miller and Eisenhauer, JJ. concur. Sackett, C.J. dissents.
I dissent.
The question is which parent is better suited to have primary physical care of Daniel, a sixteen-year-old boy, who has lived half of his time with each of his parents since he was about eight years old. Daniel is failing in school and has had a series of discipline problems. While some of these problems can be attributed to the attitudes and ideas of young boys his age, some of the problems are much more serious.
Both parents care about their son and realize he needs to spend most of his time in one environment as they each employ different techniques in dealing with Daniel's behaviors.
Debra contends she is more structured than Terrance and imposes more discipline. She has sought help for Daniel with counselors, medical doctors and medication to date with little or no success. Debra acknowledges many times she is unable to communicate with Daniel. There is no evidence of any activities that she and Daniel engage in together. Two of Daniel's more recent problems occurred during the two-week period when he resided in his mother's home. Debra has remarried, and the record shows little or nothing about her current husband's relationship with Daniel. She has been remarried for about a year.
Terrance admits he has less structure in his home and sees less need to impose discipline on Daniel. He and Daniel engage in a number of activities including hunting, and Terrance, an electrician, has taught and is teaching Daniel about working with electricity. Terrance contends that he has few problems communicating with Daniel. Terrance was the one Daniel went to when he recognized living in two homes was difficult for him. Terrance has had several women live in his home, but there was no evidence of a current relationship nor of the relationship of these women with Daniel. Terrance filed this application for modification because Daniel wanted to live with him full-time, a wish Daniel clearly communicated to the district court.
Both parents are employed in responsible jobs outside the home. Debra takes Daniel to school in the morning but is not available to him after school. Terrance goes to work early, forcing Daniel to get himself ready for school, but he is available to Daniel when he returns from school. Daniel's paternal grandfather lives near Terrance. Daniel has a relationship with this grandfather, and he is available to assist Daniel when his father is not.
Daniel's problems in school appear to be the result of his refusal to study and turn in homework. Daniel is bright. Both parents have plans to see that Daniel does his homework, yet neither plan has worked. Daniel's problems at school and in working with people generally are the result of his idea that others should not tell him what to do.
The district court determined Debra was the better custodian because there was more structure and discipline in her home. I do not disagree that there is more structure and discipline in Debra's home. However, Debra has not had much success in communicating with Daniel, and through her own testimony, I learn that the discipline methods she utilizes generally do not work. Debra has sought outside help, but that has not been particularly successful.
Obviously both parents have made mistakes with Daniel. Both of them have their shortcomings in dealing with him. The question is where does he have the greater chance in developing his potential and what weight should we give to his clearly stated wish to live with his father.
The Iowa courts have long recognized that deciding custody is far more complicated than asking children what parent they want to live with. See In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981). When we speaking of what is best for the child, we do not mean that which the child wants. Lursen v. Hendrichs, 239 Iowa 1009, 1015, 33 N.W.2d 383, 386 (1948). Preferences of minor children, while not controlling, are relevant and cannot be ignored. In re Marriage of Burham, 283 N.W.2d 269, 276 (Iowa 1979).
Iowa Code section 598.41(3)(f) (2001) provides that in considering what custody arrangement is in the best interests of the minor child, the court shall consider whether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity.
In determining the weight to be given to Daniel's testimony, we consider numerous factors. See In re Marriage of Levsen, 510 N.W.2d 892, 894 (Iowa Ct.App. 1993); In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct.App. 1985). In arriving at my conclusion I look particularly at the following facts: Daniel is smart but is not well-disciplined and has been a problem child, and Daniel is of the age and educational level where his preference is entitled to weight. The wishes of a girl thirteen years of age and of apparent maturity were considered in Burham, 283 N.W.2d at 276. The strong wish of a sixteen-year-old to be with his father, along with strong hostile feelings toward a mother who was unable to control her child, were considered by the court in granting custody to the father in Jones, 309 N.W.2d at 461-62. The wish of a thirteen-year-old girl to live with her father was entitled to some weight in In re Marriage of Woodward, 228 N.W.2d 74-76 (Iowa 1975).
Daniel's preference is strong, and he has been consistent in his wish to live with his father. The unqualified desires of fifteen- and thirteen-year-olds to live with their father added impetus to the court's decision to transfer custody to the father in Jones v. Jones, 175 N.W.2d 389, 392 (Iowa 1970). Daniel's preference also appears to be the result of the fact that Terrance has involved Daniel in activities and training that interest him. The two they are engaged in these activities together. Daniel's most recent problems have occurred during the two weeks he was in his mother's custody.
I recognize, as does the district court, that Debra imposes more discipline on Daniel, and Daniel needs to develop self-discipline. However, Daniel does not react well to the manner in which Debra imposes discipline. I do not believe that forcing him to live with her against his wishes is going to improve that situation. Terrance is able to communicate with Daniel, is seeking to raise his self-esteem and is introducing him to a trade. I believe Daniel's best chance for success is to be in the primary custody of his father.