Summary
stating in case involving grant of sole custody, a court generally does not impose conditions upon a parent's visitation unless “direct physical harm or significant emotional harm to the children or a parent is likely to result from such contact”
Summary of this case from Schleis v. KeinerOpinion
No. 4-810 / 04-0660
Filed January 26, 2005
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Tamara Grant appeals the modification of the custody provisions of the parties' dissolution decree. AFFIRMED.
Andrew Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellant.
Alexander Rhoads of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, and Frank Steinbach III of McEnroe, McCarthy Gotsdiner, P.C., West Des Moines, for appellee.
Heard by Huitink, P.J., Mahan, Miller, and Vaitheswaran, JJ., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
I. Background Facts Proceedings
A dissolution decree for Jay and Tamara Jeffrey was issued on June 9, 2000. The parties received joint legal custody of their two children, who were born in 1996 and 1997. The children were placed in the primary physical care of Tamara, with Jay having regular visitation with the children.
After the dissolution, Tamara became involved with Kelly Hilpipre, who has a substantial criminal history. In August 2002 police officers responded to a domestic violence incident between Tamara and Kelly. The officers notified the Department of Human Services that the children were present during the incident. The children were made subject to juvenile court proceedings. The juvenile court granted concurrent jurisdiction to the district court for the litigation of custody and visitation issues.
Initially, the juvenile court left the children in the care of Tamara. Tamara continued to have contact with Kelly, however, against the advice of service providers. In January 2003 the juvenile court found, "The mother has repeatedly violated protective orders of this Court and is placing her children at risk of further adjudicatory harm by exposing them to individuals such as Kelly Hilpipre and other unknown males and a chaotic lifestyle." The court concluded the children should be placed in Jay's custody. Tamara was granted supervised visitation.
Tamara filed a motion in juvenile court seeking to modify custody to allow her to resume care of the children. The juvenile court denied her request, noting she was not credible due to a pattern of deceit. The court found Tamara had not been truthful about her employment as an exotic dancer, or about her ongoing relationship with Kelly. Tamara attempted to undermine the children's placement with Jay by raising unfounded allegations against him. She testified she would prefer the juvenile court to place the children in foster care rather than leave them with Jay. The juvenile court did provide for semi-supervised visits, but these proved to be unsuccessful due to Tamara's inappropriate actions in trying to turn the children against Jay.
In April 2004 the district court ruled on Jay's application for modification of the custody provisions of the decree. The parties agreed there had been a substantial change of circumstances and that the children should be placed in Jay's physical care. The district court granted Jay's request for sole legal custody of the children. The court found, "[Tamara] adamantly refuses to cooperate and communicate in visitation, child support, and the rearing of the children, making the modification to sole legal custody in [Jay] the only result in the best interests of the children." The court also determined Tamara should have only supervised visitation, noting, "[H]er parenting skills are inadequate to maintain a safe and secure environment for the children in an unsupervised setting." Tamara appeals the district court order.
II. Standard of Review
Our standard of review in this equitable proceeding is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct.App. 1999). We give weight to the district court's findings of fact, especially in determining the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Sole Legal Custody
Tamara contends the district court should not have modified the custody provision of the parties' dissolution decree to award Jay sole legal custody of their children. To change the custody set by a dissolution decree, the party seeking modification must establish by a preponderance of the evidence conditions have so materially and substantially changed since the decree that the child's best interests make the requested change expedient. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.App. 1994). As the district court noted, the parties in this case agreed there had been a substantial change in circumstances.
Joint legal custody is favored whenever it is reasonable and in a child's best interests. Iowa Code § 598.41(1) (2003); In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct.App. 1994). "Joint custody is preferred because, properly tailored to the parties' circumstances, joint custodial arrangements will often go a long way toward encouraging both parents to share the rights, responsibilities, and frequently joyful and meaningful experiences of raising their children." In re Marriage of Behn, 385 N.W.2d 540, 542 (Iowa 1986) (quoting In re Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983)).
Under section 598.41(2)(b), a court may award sole legal custody 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." Section 598.41(3) lists several factors for the court to consider, such as whether each parent would be a suitable custodian, the psychological and emotional needs of the child, and the ability of the parents to communicate. See In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct.App. 1998).
We agree with the district court's decision to grant Jay sole legal custody of the children. There is clear and convincing evidence in the record to show that Tamara has been unwilling to act in the best interests of the children. The district court noted, "[Tamara's] lifestyle and choices put not only [Tamara's] safety at risk, but that of the children as well through volatile situations in her residence. The abuse has been witnessed by the children and will continue with [Tamara's] lifestyle."
Tamara's false accusations against Jay are also a factor to consider because they show Tamara's lack of support for Jay's relationship with the children. See In re Marriage of Liebich, 547 N.W.2d 844, 848 (Iowa Ct.App. 1996) (noting false accusations against a parent are are a factor to consider in awarding sole legal custody). Additionally, we note the district court's finding that "[Tamara] adamantly refuses to cooperate and communicate in visitation, child support, and the rearing of the children, making the modification to sole legal custody in [Jay] the only result in the best interests of the children." We affirm the award of sole legal custody of the children to Jay.
IV. Supervised Visitation
Tamara claims the district court improperly restricted her to only supervised visitation with the children. Jay asserts that Tamara's claims on this issue are moot. He states that even if Tamara succeeds on this issue on appeal, there would still be a juvenile court order restricting her to supervised visitation. We find the issue is not moot. The district court ruled, "In the event that the juvenile cases regarding the children should close, [Tamara] shall be entitled to supervised visitation with the children. . . ." Thus, it is clear the district court ruling on visitation was made with the purpose of establishing Tamara's visitation in the event the juvenile proceedings regarding the parties' children closed.
A question is moot when the issues it presents are merely academic, and any judgment rendered can have no practical legal effect. In re Marriage of Neff, 675 N.W.2d 573, 578 (Iowa 2004).
In a March 2004 ruling, the juvenile court stated, "But for the delay in concurrent jurisdiction litigation in which the District Court could monitor the need for supervision during Tamara's visits, this Juvenile Court case could close."
Generally, a court does not impose conditions upon a parent's visitation. In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct. App. 1994). Any conditions which are imposed must be in the best interests of the children. Id. at 5. A parent's visitation should not be restricted unless direct physical harm or significant emotional harm to the children or a parent is likely to result from such contact. In re Marriage of Gilliland, 487 N.W.2d 363, 366 (Iowa Ct.App. 1992).
The district court found Tamara "had a history of involvement with men that pose a real and serious threat to her safety and that of the children." The court determined, "Physical or emotional harm will befall the children because [Tamara] is unable to remove herself from these volatile situations, and especially with Mr. Hilpipre." We agree that because of Tamara's poor judgment regarding her male companions, the children could be subjected to physical or emotional harm unless Tamara is restricted to supervised visitation.
V. Attorney Fees
Jay seeks attorney fees for this appeal. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We determine each party should pay his or her own appellate attorney fees.
We affirm the decision of the district court. Costs of this appeal are assessed to Tamara.