Opinion
No. 6-112 / 05-1261
Filed March 15, 2006
Appeal from the Iowa District Court for Delaware County, John Bauercamper, Judge.
A father appeals the district court's award of joint legal custody and primary physical care of his daughter to the mother. AFFIRMED.
Mark A. Roeder of Roeder Rattenborg, Manchester, for appellant.
James L. Ottesen, Davenport, for appellee Paula Roepcke.
Patricia A. McGivern of Child Support Recover Unit, Assistant Attorney General, Waterloo, for intervenor-appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Roger Willenbring and Paula Roepcke are the unmarried parents of Kristina, born in 2001. Paula also has a son from another relationship.
At the time of trial, she was expecting a third child based on a short-lived relationship.
The parties separated in 2003 and Roger petitioned for permanent physical care of Kristina. Following trial, the district court awarded the parties joint custody and granted Paula physical care of the child. Roger appeals these determinations, together with related provisions of the custody decree. We affirm.
I. Legal Custody and Physical Care
The district court relied on three factors in awarding the parties joint custody and in granting Paula physical care: (A) Paula's role as Kristina's primary caretaker, (B) a determination that Paula was better able to support the child's relationship with Roger, and (C) the child's relationship with her older half-brother. We will address each of these factors, reviewing the record de novo. We will then turn to Roger's remaining criticisms of the court's custody and physical care determinations.
A. Primary Caretaker
In making custody and physical care determinations, courts consider which parent has historically been the primary caretaker. See In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct.App. 1996). The record supports the district court's determination that Paula filled this role. After Kristina's birth, she nursed the child for fourteen months and cared for her during most of the day and into the evening. She also cooked, cleaned, and handled money matters. While she maintained the home and children, Roger earned wages outside the home. He worked between twelve and thirteen hours every weekday as well as on Saturdays. He acknowledged, he "didn't really have too much time to do anything with [Kristina]." He explained, "[a]t the beginning I was pretty much just working, and coming home and would play with Kristina as much as I could."
After this action was filed, the parties stipulated that Paula would assume temporary physical care of Kristina, subject to reasonable visitation with Roger. Therefore, it is clear that Paula served as Kristina's primary caretaker throughout her young life.
Turning to the quality of care, the district court characterized Kristina as a "healthy, well-adjusted child." Roger's challenge to this characterization is not persuasive. He and his witnesses suggested Kristina could not speak properly for her age and they attributed this delay to Paula's practice of anticipating Kristina's needs rather than waiting for the child to make demands. No medical evidence was submitted to suggest that Kristina was not reaching developmental milestones. She attended preschool three times a week, was encouraged to read, and loved "to sing and dance."
Roger also complained that both of Paula's children appeared to be "always on edge" for fear they would do something wrong. He pointed to an incident when Paula's son forgot to put the toilet seat down and was told by Paula that he needed to go back and do that.
We are not convinced that these are the types of behaviors that justify the extreme measure of denying a parent joint custody of a child. In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992) ("[t]he Legislature and judiciary of this State have adopted a strong policy in favor of joint custody from which courts should deviate only under the most compelling circumstances."). We are also not convinced that these are the types of behaviors that reflect inadequate parenting. Notably, when Roger explained why he was seeking sole custody and physical care, he did not cite any perceived parenting inadequacies, but Paula's failure to repay a debt. He stated, "I don't think she would make a good [parent] because she still hasn't repaid [a] debt to me and she can't agree to repaying it back."
B. Supporting Relationship of Other Parent
The district court concluded Paula would be "more supportive of the other parent's right to a relationship with the child." We agree with the district court's assessment.
Paula testified Kristina loved Roger's extended family. She agreed that the child should have generous contact with that family. Roger, in contrast, did not acknowledge Paula's strengths as a parent.
We recognize that Paula engaged in certain troubling instances of spitefulness toward Roger. For example, she threw a can of soda at him and told a 911 operator he was not Kristina's father. We do not condone either act, but we conclude the acts were isolated. Both incidents occurred at the time of separation. Paula testified:
And then the next thing I knew, he said that if he had to go, he was taking Kristina. And he came at me, I'm guessing to take Kristina. And she was on my lap. And I looked down, and embraced her, and he hit my eye. At that point I think it shocked him as much as it shocked me. And I picked up a 7-up can that was actually underneath Kristina, between my legs at the time. And I threw it at him. And I got Kristina and started running up the stairs.
When asked if she now or ever claimed a pattern of physical abuse by Roger, she said, "No." When asked if she had been physical with Roger, she answered, "No." The district court accepted this testimony, finding "no history of domestic abuse that requires a higher level of court intervention into the lives of the parties and the child."
As for Paula's words to the 911 operator, Paula stated she was "[f]rightened, scared." We conclude this statement amounted to an exercise of poor judgment in the heat of an emotional argument.
Roger's more troubling assertion is his claim that he was denied visitation. Paula acknowledged several visits were missed but stated this was never intentional. According to her, one visit did not occur because she did not have any information that it had been set up. A second visit did not occur because there was "confusion" about where the transfer would take place. While Roger contends the reasons for the missed visits were more insidious, the district court found otherwise. In the court's view, the visitation issues resolved themselves with time and Roger "has received regular visitation as agreed and ordered." We give weight to this assessment because the court had the benefit of hearing and observing the parties firsthand. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997).
C. Separation of Siblings
Siblings, whether full or half-siblings, should be separated only for compelling reasons. In re Marriage of Quick-Edwards, 509 N.W.2d 476, 480 (Iowa 1993). Although there was a nine year age difference between Kristina and her older half-brother, the record establishes that they shared a close bond. Paula stated "[t]he sun shines because [her older brother] hangs it every morning." She elaborated, "[Kristina] feels the sun's out there just because he put it there for her." Roger corroborated this testimony, stating he thought the children were "pretty close" and "played a lot together." This factor supports the district court's physical care determination.
D. Roger's Remaining Arguments
In addition to challenging the grounds cited by the district court, Roger contends the court should have awarded him sole custody and physical care of Kristina based on a comparison of the following factors: (1) family backgrounds, (2) home environments, (3) employment and finances, and (4) relationships.
1. Family Backgrounds.
Roger argues that his family is much more stable than Paula's. He points to the fact that he grew up on a family farm with nine other siblings and two parents who were married to each other for more than forty years. In contrast, he notes that Paula's parents divorced when she was young and Paula had a difficult childhood. He also highlights the fact that Paula's sister married a man who was later convicted of sexually abusing his step-daughter.
We do not disagree with Roger's characterization of the parties' backgrounds. Paula acknowledged that she was a troubled child. She candidly admitted to her use of illegal drugs and alcohol as a teen, but testified that she had not used drugs since then and she did not allow alcohol in her home. As for her brother-in-law's sexual abuse history, she stated she found out about it in 1998 and immediately prevented her son from having any contact with him. She noted that, after her brother-in-law got out of prison, she and her sister had only incidental contact. She stated, "we do not go to her house. My children do not spend the night." While admitting she babysat her sister's children, she stated "[h]er children come to my house."
The record suggests, therefore, that Paula resolved the drug and alcohol problems that plagued her adolescent years and took steps to protect her children from her brother-in-law.
2. Home Environments.
Roger next points out that Paula lived in several different places over the years, whereas he "offers a continuously stable home environment." We recognize that the stability of a child's home environment is an important factor in determining custody and physical care. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998). While Paula moved extensively in the decade preceding this action, we agree with the district court that several of the more recent moves were precipitated by her separation from Roger. At the time of trial, she had been at the same location in Davenport for approximately a year. We conclude this factor does not militate against the district court's decision.
3. Employment and Finances.
Roger contends "Paula's employment as an adult, like her home environment, is characterized by instability." We agree that Paula had several jobs as well as periods of unemployment over the decade preceding the custody hearing. However, at the time of trial, she was caring for her terminally-ill mother and was receiving a State stipend for doing so. At the same time, she was attending college with a view to obtaining a legal assistant degree, and she hoped to attend law school. On this record, we are not convinced her checkered work history requires a different resolution of the custody and physical care determinations.
4. Parties' Relationships.
Roger points to Paula's several relationships with men as evidence of her instability. He argues, "[t]here is no evidence that [he] has been involved in unstable relationships, other than the one with Paula." Paula discussed her relationships, noting that some were marred by domestic abuse. At the time of trial, there was no evidence that she was involved in a romantic relationship and there was scant evidence that her prior relationships adversely affected her parenting of Kristina.
E. Disposition
Sole custody is warranted only where there is a showing, based upon clear and convincing evidence, that "joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed." Iowa Code § 598.41(2)(b) (2003). We conclude this standard was not satisfied and the district court acted equitably in awarding the parties joint custody of Kristina.
In deciding who should have physical care of a child, the ultimate focus is on the best interests of the child. In re Marriage of Ellis, 705 N.W.2d 96, 99 (Iowa Ct.App. 2005). We conclude Kristina's best interests were served by the district court's physical care determination.
II. Other Issues A. Request for Injunctive Relief
Roger contends the district court should have enjoined Paula from having any contact with her brother-in-law. In a post-trial ruling, the court stated "[t]he court is satisfied from the evidence presented at trial that the respondent will provide adequate protection and supervision for the minor child." Based on the portions of the record we cited earlier, we agree with this assessment.
B. Exchange Location
The district court ordered the parties to share transportation costs for all visits except midweek visits. The court also specified that the child would be exchanged at "some public place halfway between [the parties'] homes if they live more than 30 miles apart." Roger filed a post-trial motion contending the court should have ordered the exchanges to take place at the parties' residences. The district court denied Roger's motion, stating the transportation sharing provision of the decree was "intended to provide a minimum level of contact, and assume that the parties will cooperate and vary that schedule to meet their needs." The district court also noted that, the facts did not require the court to "micromanage" the parties' relations with each other. We agree.
We affirm the district court's decree.