Opinion
No. 5-112 / 04-0557
Filed February 24, 2005
Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.
Timothy Farrell appeals the child custody provisions of the decree dissolving his marriage to Clarissa. AFFIRMED AS MODIFIED AND REMANDED.
Eric Hansen of Gallner Patterman, P.C., Council Bluffs, for appellant.
Clarissa Farrell, Council Bluffs, appellee pro se.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Timothy Farrell appeals the child custody provisions of the decree dissolving his marriage to Clarissa. We affirm as modified and remand to the district court for further proceedings.
Background Facts and Proceedings.
Timothy and Clarissa were married in June of 2002. Clarissa had a daughter, Hailey, from a previous relationship and in November of 2002, a son, Gaven, was born to Timothy and Clarissa. In September 2003, Timothy filed a petition seeking dissolution of the marriage. Following a trial, the district court entered a decree dissolving the marriage and granting the parties joint legal custody as well as joint physical care. Timothy appeals, contending the court improperly granted joint physical care. He asks that we modify the decree to award him sole physical care.
Scope of Review.
We review dissolution decrees de novo. See Iowa R. App. P. 6 .4. We examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996).
Child Custody.
The critical issue in questions of child custody is the best interests of the child. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). 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 court should also consider the characteristics and needs of the child, the characteristics of the parents, the capacity and desire of each parent to provide for the needs of the child, the relationships of the child with each parent, the nature of each proposed environment, and the effect of continuing or changing an existing custodial status. See In re Marriage of Winter, 223 N.W.2d 165, 167 (Iowa 1974).
The legislature has declared that joint physical care is a viable solution where it advances the best interests of the child. Iowa Code § 598.41(5) (2003); In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). If the parents of the child are able to cooperate and respect each other's parenting and lifestyles, a joint care arrangement can be successful. In re Marriage of Swenka, 576 N.W.2d 615, 617 (Iowa Ct.App. 1998).
Neither Timothy nor Clarissa requested a joint physical care arrangement. In fact, Timothy argued that Clarissa should only be granted supervised visitation, claiming that he feared for Gaven's safety if he is left in her care. Likewise, Clarissa maintained she should be named Gaven's primary physical caretaker so that Gaven would not be separated from his half-sister.
Joint physical care of a child clearly calls for an extraordinary level of cooperation and communication between the parents. See id. Upon our de novo review of the record, we have serious concerns about whether Timothy and Clarissa will live up to the expectations required of joint physical care parents. Clarissa conceded that she was not "overly communicative" with Timothy. Moreover, when asked whether she believed Timothy would be "flexible enough or communicate with you enough to make" a joint physical care arrangement work, Clarissa responded "no."
For his part, Timothy wanted no part of a shared physical care situation. He expressed concerns that Clarissa may have been using methamphetamine, noting her sudden and dramatic unexplained weight loss and the existence of scabs on her arms. He also expressed problems with the temporary shared custody arrangement which existed up until the decree of dissolution. He stated that the exchange was not consistent. Timothy further testified that Clarissa would not even tell him whether she had taken Gaven to the doctor when under her care. The record is replete with instances of communication problems between the parties.
Under these circumstances, particularly considering the parties' apparent agreement that joint physical care is neither desirable nor workable, we conclude a joint physical care arrangement is not in Gaven's best interests. The record does not support and therefore we do not have confidence that Timothy's and Clarissa's relationship will foster or allow for the quantity and quality of cooperation and communication that is so essential to the success of this type of arrangement.
The question then becomes which parent should be named Gaven's physical caretaker. We find that granting Timothy Gaven's physical care would be in Gaven's best interests. The record indicates that Timothy provided much of Gaven's day-to-day care during the marriage. He appears to be an active and involved parent. Timothy is strongly bonded with Gaven and has taken him to the majority of Gaven's medical appointments. The record supports that Timothy is actively engaged in every aspect of Gaven's parenting. Further, Timothy has stable employment and is financially capable of Gaven's full-time care.
In addition, we question Clarissa's maturity and ability to place Gaven in a position of primary importance in her life. Timothy charged, and Clarissa admitted, that during the marriage she would often "disappear" overnight and stay at friends' houses, leaving both Hailey and Gaven in Timothy's care. At trial, Clarissa further admitted that she would not leave Timothy information as to where she was, stating "[h]e has my cellphone number." Furthermore, Clarissa admitted to a methamphetamine problem in the past. Although a recent hair-strand test was negative, the district court found that "Timothy's concerns [about Clarissa's renewed drug use] have some basis in his own observations." While Clarissa clearly loves Gaven, the record supports that Timothy is the parent who is more dependable and can minister more effectively to Gaven's long range best interests.
Conclusion.
A joint physical care arrangement is not in Gaven's best interests. Accordingly, we modify the dissolution decree to affirm joint legal custody, but modify to provide that Timothy shall be Gaven's primary physical caretaker. We therefore remand to the district court so the parties may be heard and the court may consider and decide questions of visitation, child support, tax exemptions, and other necessary issues.