Opinion
No. 3-039 / 01-1598.
Filed March 12, 2003.
Appeal from the Iowa District Court for Johnson County, THOMAS KOEHLER, Judge.
Respondent challenges the custody and visitation provisions of the trial court's decree. AFFIRMED IN PART AND VACATED IN PART.
John Croke, Iowa City, appellant pro se.
Catherine Pugh of Stein, Moreland, Moore Egerton, L.L.P., Iowa City, for appellee.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
I. Background Facts and Proceedings.
John and Melissa began living together in July 1990. They are the parents of two children: Mary, born May 7, 1991; and John, born October 15, 1995. John and Melissa last lived together with their children in Bloomington, Indiana, in 1998. At that time Melissa moved to Hempstead, New York, to accept employment. John and the children remained in Indiana. In April 1999 John refused Melissa's request to send the children to New York to live with her. John and the children moved to Iowa City in May 1999.
These proceedings originated with Melissa's May 26, 2000, petition for determination of custody, child support, and visitation filed in Johnson County, Iowa. Following a June 15, 2000, hearing, the trial court granted the parties joint custody of their children. Melissa was granted physical care. John's motion to dismiss Melissa's petition on jurisdictional grounds was denied. Melissa assumed temporary physical care of the children after securing enforcement of the temporary order by a court in British Columbia, Canada, where John had moved with the children prior to the June 15, 2000, temporary hearing. John's September 28, 2000, motion to modify the temporary order was denied. The children have since resided with Melissa in Silver Springs, Maryland.
At trial Melissa demanded sole custody of the children citing John's abusive behavior as well as a litany of parental failures detrimental to the children's well being. John denied Melissa's allegations of abuse and demanded physical care of the children. John cited his experience as the children's primary care provider, Melissa's history of drug abuse, psychological problems, failure to pay child support, and career priorities as factors distinguishing him as the preferred physical care provider.
The trial court's findings of fact entered after trial on the merits of the parties' competing custodial claims provide:
5. The Petitioner argues that the best interests of the children dictate that she be awarded sole custody of them. The Respondent is able to provide love and support, as well as necessities such as clothing, food, furniture and toys, but the Court is required to look at the long-term best interests of the children. While it is true that the Petitioner has a much higher annual income, the level of financial resources is not one of the primary considerations in a determination of custody. The Petitioner has been the primary caregiver for the children almost their entire lives, but the Court, in this case, is placing greater importance on the stability of the relationship between the children and the primary caregiver over the physical setting of the children. There is no question but that Mary Rose and John have a strong bond with their mother and it would be detrimental to remove them from the environment in which these relationships have formed. Given the amount of domestic abuse prevalent in this case, joint custody would not be appropriate. The Court concludes that the Petitioner is best able to provide for the long-term best interests of the children and she should be awarded sole custody of them subject to visitation by the Respondent after psychological testing. The record is replete with examples of the Respondent's failure to control his anger, which must be addressed by the Respondent prior to physical interaction with the children.
Based on these findings, the trial court granted Melissa sole custody of the children. John's right to visit the children was limited to four telephone calls per week. He was denied physical contact with the children, pending a psychological evaluation and "professional" recommendation for supervised visits. In that event, John's visitation was restricted to a facility in the Silver Springs, Maryland, area licensed for that purpose. The trial court's decree also provided for increasing weekend and supervised visitation upon the written approval of the children's designated therapist. John was also ordered to pay child support and court costs.
On appeal John challenges the custody and visitation provisions of the trial court's decree. He argues that the trial court's findings of domestic abuse are not supported by the record. John also argues that the children's best interests are better served by granting the parties joint custody and placing their physical care with him.
II. Scope of Review.
Our review of these equitable proceedings is de novo. Iowa R.App.P. 6.4. It is our duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct.App. 1993). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
III. Custody.
In child custody cases, the critical issue is not which parent possesses the greater right to the child; rather the controlling consideration must be the best interests of the child. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). The same custody considerations apply whether the parents are wed or unwed. Id. This decision requires selection of a custodial parent who can minister more effectively to the long-range best interests of the child. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996). The objective should always be to place the child in the environment most likely to bring that child to healthy physical, mental, and social maturity. See In re Marriage of Rebouche, 587 N.W.2d 795, 797 (Iowa Ct.App. 1998). The court should also consider the characteristics and needs of the child, including the child's age, the characteristics of the parents, the capacity and desire of each parent to provide for the needs of the child, the relationship of the child with each parent, the nature of each proposed environment and the effect of continuing or changing an existing custodial status. Iowa Code § 598.41(3) (Supp. 1999); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).
There is no presumption in favor of the mother or the father. See In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974). Greater primary care experience is one of many factors the court considers, but it does not ensure an award of physical care. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct.App. 1995). Insofar as is reasonable and in the best interests of the child, the court should make an award of custody which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents and which will encourage the parents to share the rights and responsibilities of raising the child. See Iowa Code § 598.41(1).
Iowa Code section 598.41(1)(b) establishes a rebuttable presumption against awarding joint custody upon a finding that the parties have a history of domestic abuse. If the trial court's affirmative findings of a history of domestic abuse are unrebutted, those findings trump any other consideration set forth in section 598.41(3). Iowa Code § 598.41(2)(c). In making this determination, the court is required to apply the following definition of domestic abuse.
"Domestic abuse" means committing assault as defined in section 708.1 under any of the following circumstances:
a. The assault is between family or household members who resided together at the time of the assault
. . . .
c. The assault is between persons who are parents of the same minor child, regardless of whether they have been married or have lived together at any time.
Iowa Code § 236.2(2) (1999). The court is also required to "weigh the evidence of domestic abuse, its nature, severity, repetition, and to whom directed, not just to be a counter of numbers." In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). A history is not necessarily established by one documented incident, nor does more than one minor incident establish a history of domestic abuse. Id.
Contrary to John's claims, the record contains abundant evidence supporting the trial court's findings of a history of domestic abuse implicating the statutory presumption against an award of joint custody. There is evidence that John has repeatedly pushed, slapped, choked, head butted, thrown objects at or otherwise assaulted Melissa throughout their relationship. In addition to Melissa's testimony describing John's abusive behavior, other witnesses testified to their observations and recollections corroborating her claims. Because the trial court's perspective on this evidence is superior to ours, we defer to its resolution of the parties' conflicting versions of these events in Melissa's favor. We, like the trial court, find the parties' unrebutted history of domestic abuse necessitates an award of sole custody of the children to Melissa.
In reaching this conclusion, we have not ignored evidence of John's redeeming parental qualities or favorable testimony by character witnesses familiar with his circumstances. Melissa conceded that she was not concerned for the children's safety while in John's care and knew he would do nothing to hurt them. John also deserves credit for his strong commitment to the children's spiritual, educational, and social development. This evidence, however, is not sufficient to rebut the statutory presumption against joint custody or the negative inferences resulting from John's relocation of the children to Canada while proceedings to determine their custody were pending.
IV. Visitation.
Liberal visitation with the noncustodial parent is generally considered in the children's best interests. In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct.App. 1994). We are reluctant to impose conditions on visitation unless it is necessary to prevent direct physical harm, or significant emotional harm to the children or other parent. Iowa Code § 598.41(1).
As noted earlier, the trial court imposed a number of conditions on John's visitation rights. After reviewing the record, we find no justification for John's psychological evaluation or professional recommendation for supervised visitation as a predicate to physical contact with the children. The trial court's contrary conclusion cannot be reconciled with evidence that the children were safe and well cared for while in John's physical care. Moreover, it ignores John's successful completion of the court mandated "Helping Children Cope, A Program for Parents" program specifically designed to address the issues of concern to the trial court. In the absence of informed opinion that John suffers from a psychological disorder posing a risk of harm to the children, such an evaluation and recommendation are unnecessary.
The only circumstances justifying conditional visitation are the risk of physical harm to Melissa and John's past efforts to abscond with the children. We agree, in general, with the trial court that these circumstances necessitate supervised visitation within a reasonable proximity to Melissa's residence and accordingly affirm the relevant portions of the decree imposing such conditions.
The decision of the trial court awarding Melissa sole custody of the parties' children is accordingly affirmed. The provisions concerning John's psychological evaluation and professional recommendation for supervised visitation prior to physical contact with the children are vacated. The remaining portions of the trial court's decree are affirmed in their entirety. We have carefully considered the remaining issues John raises on appeal and find they are either without merit or are controlled by the foregoing.