Opinion
No. 5-784 / 05-0343
Filed November 23, 2005
Appeal from the Iowa District Court for Allamakee County, John Bauercamper, Judge.
Matthew Kostman appeals the district court's judgment denying him visitation. AFFIRMED.
David Strand of Strand Riker Law Office, Decorah, for appellant.
Dennis Larson of Larson Law Office, Decorah, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Matthew Kostman appeals the district court's judgment denying him visitation. He argues visitation is in the best interests of the child. We affirm.
I. Background Facts and Proceedings
Matthew Kostman and Nancy Frana have one eight-year-old daughter. They have neither been married nor lived together. Frana is their daughter's primary caretaker. Kostman suffered prenatal brain damage, is borderline mentally retarded, and receives Social Security benefits. Until September 2002, Frana and Kostman agreed on frequent visitation. At that time, Kostman suffered a serious psychotic episode. He turned himself in and gave police several pieces of child pornography he had downloaded. While in the hospital, he admitted sexually abusing his daughter during 2002. Child protective services conducted an investigation and determined that a preponderance of the evidence showed Kostman committed sexual abuse in the second degree.
Kostman brought this petition for visitation in September 2003. The district court found that Kostman had sexually abused his daughter. Because of his mental condition, the abuse of his daughter, and the continuing effects of the abuse on his daughter, the court determined clear and convincing evidence showed that awarding Kostman visitation would jeopardize the child's safety. Thus, the court concluded that the child's best interests necessitated denying Kostman visitation. Kostman appeals.
II. Standard of Review
We review de novo. Iowa R. App. P. 6.4. De novo review requires that we examine the record anew. In re Marriage of Salmon, 519 N.W.2d 94, 95 (Iowa Ct.App. 1994). Though they do not bind us, we give weight to the district court's credibility findings. Iowa R. App. P. 6.14(6)( g). We will usually only disturb the district court's decision regarding visitation if the record shows it is inequitable. Salmon, 519 N.W.2d at 95.
Prior cases have little precedential value, so we must base our decision primarily on the particular circumstances of these parties. Petition of Holub, 584 N.W.2d 731, 732 (Iowa Ct.App. 1998). The criteria governing our decision are the same whether or not the parties are married. Petition of Purcell, 544 N.W.2d 466, 468 (Iowa Ct.App. 1995). Ultimately, our highest consideration is the best interests of the child. Iowa R. App. P. 6.14(6)( o).
III. Merits
Liberal visitation rights are generally in the best interests of the child. In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct.App. 1991). Iowa Code chapter 598 (2003) defines the best interests of the child as "the opportunity for maximum continuous physical and emotional contact possible with both parents, unless direct physical or significant emotional harm to the child may result from this contact." Iowa Code § 598.1. We are not to prohibit visitation unless visitation would in some way injure the child. Toedter, 473 N.W.2d at 234. Mental illness does not automatically deprive a parent of the right of visitation. Willey v. Willey, 253 Iowa 1294, 1303, 115 N.W.2d 833, 839 (1962).
Given the evidence before us, we must deny Kostman visitation with his daughter. The record shows that Kostman at the very least had inappropriate sexual contact with his daughter. She continues to suffer the repercussions of this contact. Additionally, he turned several pieces of child pornography over to police. We conclude that allowing Kostman visitation would probably cause his daughter further significant emotional injury and could possibly lead to direct, physical harm. We therefore affirm the district court's judgment denying Kostman visitation.
Finally, Frana requests appellate attorney fees. An award of attorney fees is within the court's discretion. In re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa 1994). We decline to award appellate attorney fees.