Opinion
No. 5-800 / 05-0956
Filed January 19, 2006
Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.
Vanessa Timp appeals and Christopher O'Brien cross-appeals from the order granting the parties joint physical care of their daughter. AFFIRMED.
Pamela A. Vandel, Des Moines, for appellant.
Barry S. Kaplan and Melissa A. Nine of Kaplan Frese, L.L.P., Marshalltown, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Vanessa Timp and Christopher O'Brien are the parents of Elizabeth, who was born in May of 2004. Vanessa had lived with Christopher and his parents for over a year, and only informed Christopher she was pregnant after she moved out and began residing with her new boyfriend, James Beard. Christopher claims Vanessa kept him uninformed about her pregnancy, but Vanessa claims Christopher was simply uninterested. After Elizabeth's birth, Vanessa resisted Christopher's efforts to see the child. Vanessa claimed that because Elizabeth had health problems, she was reluctant to allow visitation. When Elizabeth was approximately six months old, Christopher sought and received a court order allowing him visitation.
In July of 2004, Christopher filed a "Petition for Custody" in which he requested paternity testing and sought an order allocating to him Elizabeth's physical care. Christopher was later conclusively established as Elizabeth's father. During his testimony at the trial of this matter, Christopher specifically requested joint physical care of Elizabeth. Vanessa testified, however, that she desired to be Elizabeth's physical caretaker. Following the hearing, the district court entered a decree ordering that Vanessa and Christopher share both legal custody and physical care of their daughter. The court further ordered that the parties would alternate physical care on a weekly basis. Vanessa appeals from this order, contending she should be designated as the provider of Elizabeth's physical care. Christopher cross-appeals, maintaining that in the event the court finds joint physical care is inappropriate under the circumstances of this case, he should provide Elizabeth's physical care.
We conduct a de novo review of physical care determinations. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Our overriding consideration is the child's best interests. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We give weight to the fact findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
As noted, the district court concluded the parties should share joint physical care of Elizabeth. Vanessa claims this was inappropriate. Iowa Code section 598.41(5) (2005) reads, in relevant part, as follows:
If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
Furthermore, our court has stated:
Although there is a multitude of case law stating joint physical care is strongly disfavored, the legislature recently proclaimed joint physical care a viable disposition of a custody dispute if in the best interests of the children. If the parents of the children are able to cooperate and respect each other's parenting and lifestyles, a joint care arrangement can work.
In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). Thus, joint physical care is no longer disfavored, but it is still not a "preferred" custodial arrangement. See In re Marriage of Ellis, 705 N.W.2d 96, 101 (Iowa 2005).
In allocating joint physical care to Christopher and Vanessa, the district court stated:
This court concludes from the evidence presented at trial that both Christopher and Vanessa can care for their daughter. This appears to be an appropriate case for parents to share joint legal custody of their child and also joint physical care. Elizabeth will be one year of age [in 2005]. She is at a point in her development where it is important that she spend time with both of her parents. At the present time, both parties have homes which are suitable for joint physical care of their daughter. Both also appear committed to providing loving care for their daughter and conducting themselves in a way that will advance their daughter's best interests.
Upon our de novo review of the record, we concur in the judgment and findings of the court on this issue, and we adopt them as our own. Both Vanessa and Christopher appear to have the capability, desire, and maturity to effectively provide for Elizabeth's physical and emotional well-being. Vanessa has performed well in the role of primary physical caretaker up to this point, and Christopher appears to have the support system in place to enable him to perform as well in the future. Elizabeth's best interests are served most effectively by ensuring the maximum physical contact with both parents. Joint physical care furthers that goal in this case, and we therefore affirm the district court's order. Costs on this appeal are assessed to Vanessa.