Opinion
No. 1-048 / 00-1167
Filed March 14, 2001
Appeal from the Iowa District Court for Hardin County, Carl D. Baker, Judge.
Richard Brass appeals from the district court's ruling in a custody action. AFFIRMED AS MODIFIED.
Bradley J. Harris of Kliebenstein, Heronimus, Schmidt Harris, Grundy Center, for appellant.
Larry W. Johnson of Walters Johnson, Iowa Falls, for appellee.
Heard by Streit, P.J., and Hecht and Vaitheswaran, JJ.
Richard Brass appeals from the district court's ruling in a custody action granting Jill Rewoldt custody of their children. He contends: (1) the presence of prior domestic abuse in Jill's home is adequate cause to grant physical care to him, (2) the best interests of the children require he be granted their physical care, (3) the court erred in focusing on the continuity of placement rather than the children's long term best interests, and (4) the trial court erred in failing to grant joint legal custody and in failing to cite clear and convincing evidence as to why it would be unreasonable in this case. We affirm as modified.
I. Factual Background and Proceedings. Richard Brass and Jill Rewoldt are the biological parents of twin boys, Kevin and Kolton, born on July 5, 1999. Richard and Jill engaged in a brief relationship in the late summer and early fall of 1998. In October of 1998, Richard moved into Jill's home for approximately a month. After learning Jill was pregnant, Richard moved out of Jill's home and back into the home he had previously shared with his girlfriend of eleven years, Debra. Richard had very little contact with Jill during her pregnancy, and he was not present for the birth of the twins. However, he did visit them approximately one week after their birth and has exercised regular visitation with them since that time.
At the time of trial, Jill and her ex-husband, Bruce Rewoldt, were living together with Kevin and Kolton, and their daughters, Katelynn, born November 23, 1990, and Kassidy, born August 8, 1994. Jill was twenty-eight years old and Bruce was thirty-three years old. Bruce is employed full-time, and Jill stays home with the children. Jill divorced Bruce in May of 1998, after seven years of marriage. In the fall and winter of 1997, Bruce experienced difficulties with depression and anger management. He sought treatment and counseling and was released in January of 1998. Bruce and Jill reconciled in May of 1999, shortly before the birth of the twins. Bruce attended Kevin and Kolton's birth and has assumed an active parenting role in their lives. A home-study conducted for the purposes of this matter indicated Jill and Bruce provide a stable, loving home for their children. The study indicated both of them have excellent parenting skills.
Richard and Debra married in November of 1999. Although they are recently married, they have been involved in a relationship for almost seventeen years and lived together for eleven years before the marriage. At the time of trial, Richard was forty-seven years old and Debra was forty-five years old. Richard is employed as a manager at Quality Products in Eldora. Debra teaches horseback riding and trains horses on their property near Eldora. She also works at Quality Products. Both Richard and Debra have a good relationship with Kevin and Kolton. The home-study conducted of their home concluded they were able to provide a warm, loving, and nurturing environment to raise the twins.
Richard filed a petition to obtain physical care of Kevin and Kolton on July 22, 1999. On June 1, 2000, the district court granted Jill physical care of the children and Richard liberal visitation. Richard appeals.
II. Standard of Review. This case was tried in equity and therefore our review is de novo. Iowa R. App. P. 4. We are not bound by the district court's findings of fact, but do give them deference because the district court had the opportunity to view the demeanor of the witnesses firsthand when testifying. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). The controlling consideration in child custody cases is always what is in the best interests of the child. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981).
III. Custody. The criteria governing custody decisions are the same regardless of whether the parties are dissolving their marriage or are unwed. Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct. App. 1994). The court's objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). The court determines placement according to which parent can minister more effectively to the children's long-range best interests. In re Marriage of Buttrey, 538 N.W.2d 322, 324 (Iowa Ct. App. 1995). The critical issue in determining the best interests of the children is which parent will do better in raising the children; gender is irrelevant, and neither parent should have a greater burden than the other should. In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996).
Numerous factors help determine which parent should serve as the primary caretaker of the children. Iowa Code § 598.41 (1999); In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct. App. 1997). Some factors are given greater weight than others, and the weight ultimately assigned to each factor depends on the particular facts of each case. In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998).
A. Prior Domestic Abuse. Richard asserts the district court erred by granting Jill physical care of Kevin and Kolton after making a finding Bruce had behaved in a harassing and abusive manner toward Jill. Evidence of domestic abuse creates a rebuttable presumption against joint custody. SeeIowa Code § 598.41(1)(b), (2)(c); In re Marriage of Ford, 563 N.W.2d 629, 632 (Iowa 1997). Richard points to evidence in the record that Bruce exhibited threatening behavior toward Jill, followed her in his car, and nailed the windows of her home closed. We, like the district court, consider this behavior unacceptable and harassing. However, since the time when Bruce engaged in this behavior, he has undergone mental health counseling and treatment for depression. His testimony at trial indicates he understands the inappropriate nature of his actions and will not repeat his past conduct. Clearly, there is evidence of some domestic abuse in the past in Jill's home; however, the record reflects Bruce's behavior has been addressed, and the couple is working through some problems in their relationship.
B. Best Interests of the Children. Richard argues the best interests of the twins dictate he be awarded physical care of them. He specifically asserts the district court placed too much emphasis on continuity of care and not enough on the long-term best interests of the children. Home-studies of both parties indicate both homes are appropriate environments in which to raise Kevin and Kolton. Both families are able to provide love, care, and support as well as necessities such as clothing, food, furniture, and toys. Richard's argument mainly focuses on the difference between his financial situation and Jill's. While it is true Richard and Debra have a higher annual income than Jill and Bruce do, the level of financial resources is not one of the primary considerations in a determination of placement of physical care. Jill has been the primary caregiver to the twins for their entire lives. Contrary to Richard's assertions this consideration is not important, our case law places greater importance on the stability of the relationship between the child and the primary caregiver over the physical setting of the child. Williams, 589 N.W.2d at 762. Kevin and Kolton have a strong bond with Bruce and their stepsisters, Kassidy and Katelynn. It would be detrimental to remove them from the environment in which these relationships were fostered. In addition, Richard will still be able to care for the twins and their financial needs as their father. We conclude Jill is best able to provide for the long-term best interests of Kevin and Kolton. We affirm the district court's determination physical care of Kevin and Kolton should be with Jill, subject to visitation with Richard.
C. Joint Legal Custody. Richard contends the district court erred by not making a finding in its decree regarding whether he and Jill should have joint legal custody of Kevin and Kolton. Jill argues the district court's silence on the issue of legal custody indicates it intended to award her sole legal custody of the twins. She also argues she, as the mother of children born out of wedlock, has sole custody of the boys unless a court orders otherwise. To support this argument, she directs us to the provisions of section 600A.40:
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 proceeding separate from any action to establish paternity.
In determining the visitation or custody arrangements of a child born out of wedlock, if a judgment of paternity is entered and the mother of the child has not been awarded sole custody, section 598.41 shall apply to the determination, as applicable, and the court shall consider the factors specified in section 598.41, subsection 3, including but not limited to the factor related to a parent's history of domestic abuse.
Iowa Code § 600B.40 (emphasis added). We cannot agree with Jill's assertion because the record indicates Richard immediately recognized his paternity of the children after their birth. Within a month of their birth, he petitioned the court for custody of the boys. Richard has regularly exercised visitation with the twins and has on several occasions requested extended visitation with them. He has affirmatively been seeking to care for Kevin and Kolton since their birth and has taken responsibility for their upbringing as a father. See In re L.B., 530 N.W.2d 465, 468 (Iowa Ct. App. 1995). We acknowledge Jill's argument that Richard requested paternity testing after the birth of the twins. Although he desired to have DNA testing to confirm the paternity of Kevin and Kolton, he has never wavered on his responsibility as their father or on his involvement in their lives since their birth. This is not a case where the father of the children has never acknowledged his paternity. Richard admitted paternity and took legal action to gain custody soon after the children were born. Accordingly, section 600B.40 does not mandate sole custody in Jill in this case.
Jill next contends the provisions of Iowa Code section 598.41 do not apply to this case because she and Richard were never married and chapter 598 only applies to married persons. We disagree. Section 600A.40, as quoted above, indicates after paternity has been established, section 598.41 applies to any determinations regarding custody and visitation of children born out of wedlock. Iowa Code § 600A.40. Section 598.41 provides, in relevant part:
a. On the application of either parent, the court shall consider granting joint custody in cases where the parents do not agree to joint custody.
b. If the court does not grant joint custody under this subsection, the court shall cite 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)(a), (2)(b). The district court made no provision for legal custody of the twins and furthermore, made no findings joint custody was unreasonable or not in the best interests of the children. The record indicates Richard is a good, loving, and caring parent. He has shown an interest in Kevin and Kolton's lives since their birth and desires to have a continuing relationship with them as their father. He has taken responsibility for the care and support of the twins and seems genuinely interested in their well-being. Jill testified at trial she believes Richard is a good parent. Joint custody is appropriate in this situation. Therefore, we modify the decree to provide for joint custody of Kevin and Kolton, with continued physical care in Jill's home. See In re Marriage of Holcomb, 471 N.W.2d 76, 79-80 (Iowa Ct. App. 1991). We affirm the district court's decree as modified.
AFFIRMED AS MODIFIED.