Opinion
No. 1-914 / 01-0529.
Filed March 13, 2002.
Appeal from the Iowa District Court for Black Hawk County, BRUCE ZAGER, Judge.
Mateja Kajtazovic appeals the child custody provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED AND REMANDED.
Michael Lanigan, Waterloo, for appellant.
Paul Demro of Correll, Sheerer, Benson, Engels, Galles Demro, Cedar Falls, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Mateja Kajtazovic appeals the child custody provisions of the parties' dissolution decree, which granted physical care of their child to Mersud (Mickey) Kajtazovic. We believe the child's best interests will best be served by granting Mateja physical care and therefore modify the district court's physical care determination.
Background facts and proceedings. Mickey, a native of Bosnia, and Mateja met in Mateja's native country of Slovenia. While dating, Mateja became pregnant and on July 11, 1996, their son Denis was born. Mateja continued to live in her parents' home and be supported by them until Denis was over four months old. Mickey and Mateja were married on March 29, 1997, and in February of 1998, the family moved to Waterloo where Mickey's younger sister, Elvira, lived. Following a contentious relationship, during which time Mateja made allegations of abuse and Mickey accused Mateja of infidelity, the parties' marriage was dissolved. The court granted the parties joint custody of Denis, and designated Mickey as the physical care parent. Mateja now appeals, contending the court erred in granting Mickey physical care of Denis and in refusing to grant her motion to reopen the record.
Scope of review. Our review of a custody order is de novo and our primary consideration is the best interests of the child. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995). In assessing a custody order, we give considerable weight to the judgment of the district court, which has had the benefit of hearing and observing the parties first-hand. Id. at 278. However, we are not bound by those determinations. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).
Physical care. The best interest of the child is the controlling consideration when assessing the issue of child custody. In re Marriage of Williams, 589 N.W.2d 759, 760 (Iowa Ct. App. 1998). The court determines placement according to which parent can minister more effectively to the child's long range best interests. In re Marriage of Buttrey, 538 N.W.2d 322, 324 (Iowa Ct. App. 1995). The court's objective is to place the child in the environment most likely to bring him to a healthy physical, mental, and social maturity. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996).
We first recognize, as the district court did, that both Mickey and Mateja possess positive qualities indicating their ability to suitably act as caretakers for Denis. They clearly both love Denis, have close relationships with him, and desire to be his physical caretaker. The record indicates that prior to the entry of a no-contact order against Mateja in May of 2000, she was the parent primarily responsible for Denis's everyday needs, and was successful in this task. However, following the entry of the no-contact order, the record illustrates the parties shared about equal time in caring for Denis.
We are not convinced that if Mickey is granted physical care of Denis he will encourage, or even simply allow, a healthy and meaningful relationship between Mateja and Denis. The record is replete with signs of Mickey's rigidity and profound animosity toward Mateja, in addition to his unwillingness to forgive her for suspected infidelity, will likely manifest itself through Denis. In reaching our decision we must consider which parent will encourage the most contact between the noncustodial parent and the child. Iowa Code § 598.41(1)(a) (2001); In re Marriage of Will, 489 N.W.2d 394 at 399 (Iowa 1992). We believe Mateja is best suited to encourage this important contact.
We note Mateja denies being unfaithful during the marriage.
Iowa Code section 598.41(1)(c) (2001) provides "[t]he court shall consider the denial of one parent of the child's opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement." The record shows that Mickey restricted Mateja's access to Denis at various times. After the entry of the no-contact order against Mateja, Mickey did not allow her to see Denis for almost two months.
Further, the evidence indicates that Mickey attempted to corrupt Denis's attitude toward his mother. Attempts to alienate a child will adversely reflect on one's custodial abilities. See In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984). Becky Frost, a Department of Human Services social worker testified she suspected Mickey was coaching Denis to speak critically of his mother. Testimony provided by Mateja's friend Rebecca Damewood and Mickey's cousin, Safet Sabic, revealed Denis had called Mateja a "bitch" on multiple occasions. One of Denis's daycare providers testified that Mickey had referred to Mateja as a "bitch" in the presence of Denis. Evidence was also presented that Denis exhibited inappropriate physical or verbal aggression toward Mateja, including hitting, biting, and other upsetting comments. We believe the evidence supports four-and-a-half year-old Denis learned this behavior from Mickey and bodes against Mickey being responsible for physical care of Denis. See In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct. App. 1992) ("In determining custody we can give great weight to a parent's attempt to alienate a child from her other parent if evidence establishes the actions will adversely affect a minor child.").
Iowa courts do not tolerate hostility exhibited by one parent to the other. In In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App. 1994), we addressed a situation where one parent sought to put the other parent in an unfavorable light and considered it a factor in modifying a custody award. Id. Here, Mickey testified that he felt "dishonored" by what he perceived as Mateja's infidelity and that when someone is dishonored, "[y]ou don't want to be in contact no more with that person." We believe Mickey's testimony and actions exhibit sentiment that has demonstrated an adverse influence on Denis, to the detriment of Denis's relationship with his mother. It extends beyond the tolerable bounds of behavior of a parent charged with supporting maximum physical and emotional contact with the other parent. See Iowa Code § 598.41(1)(a). The courts cannot award physical care to a parent who so blatantly uses a small child as a pawn in expressing hostility towards the other parent. We also note Mateja had completed the statutorily mandated requirement of attending an education course, (commonly referred to as "Children in the Middle"), while Mickey had not. See Iowa Code § 598.19A.
We are also particularly troubled with Mickey's attitude and behavior toward Mateja during their marriage's downturn and eventual demise. The record reveals Mickey's history of violence, verbal abuse, and controlling and condescending attitude toward Mateja. Even in granting Mickey physical care of Denis, the district court expressed such concerns. Mateja testified that Mickey would not allow her to speak to her friends, while drunk he would yell at her, and that he hit and bruised her on various occasions. This attitude and behavior almost certainly impacted Denis, and thus factors in our decision to grant Mateja physical care. See In re Marriage of Kunkel, 555 N.W.2d 250, 254 (Iowa Ct. App. 1996) (granting father primary caretaker role in light of mother's contentious disposition and hostile temperament).
Additional examples abound in the record reflecting on the ill manner in which Mickey acted toward Mateja and how this placed Denis at the center of their conflict. Mickey admitted that he had called police to report something on Mateja over one hundred times over the course of one summer. He also admitted that in a note given to Denis's daycare provider, he specifically told the provider not to contact Mateja in case of emergency, but rather to contact Mickey's sister or cousin. Daycare provider Ibro Ilic, who testified that he witnessed Mickey referring to Mateja as either a "bitch" or a "whore," also testified that Mickey picked up Denis drunk and on one occasion was angry and yelling loud enough that the rest of the children in the playground stopped to listen to him. Again, these incidents support our concerns about Mickey's maturity and willingness to ensure maximum continuing physical and emotional contact of Denis with Mateja.
We also place more credence in the psycho-social assessments than did the district court. This psycho-social assessment, ordered by the court on November 8, 2000, is one of the neutral and detached tools the district court had at its disposal in helping to determine custody arrangements. Here, the investigator Terra Cleveland, recommended the court grant Mateja physical care based, in part, on the recognition that "it is of the utmost importance that a parent make every effort to keep a child connected with the non-custodial parent." Cleveland noted concern with Mickey's "lack of awareness of the negative impact he is having on his son by speaking despairingly of his mother while in Denis' presence." In her assessment, Cleveland notes she witnessed numerous occasions in which Mickey made statements in Denis's presence reflecting negatively on Mateja. When Cleveland asked Denis why he struck his mother, Denis responded, "Daddy told me to hit Mommy." We share the concerns expressed in the psycho-social assessments, and consider them important validations of other witnesses' testimony.
The district court elected not to accept the recommendation of the evaluator based primarily on the fact the evaluator did not testify at trial, and thus did not submit to cross-examination. We note the evaluator was present the first day of trial and available to testify. However, for reasons not clear from the record, she was not called to testify.
We are also aware of Mateja's shortcomings as indicated in the record, but find they are far less of an impediment to providing for the best interests of Denis. The district court rejected Mickey's suggestions that Mateja was suffering from an emotional or mental disability which would affect her ability to parent Denis. Like the district court, we believe any problems borne out by the record are manifestations of Mateja's marital problems and understandable difficulties in adjusting to American life away from her family. Mateja's faults do not indicate vindictiveness or impact her ability to foster a continuing relationship between Denis and Mickey.
Mateja is the parent better able to maintain a healthy contact between Denis and the noncustodial parent. Consequently, we conclude based on our de novo review of the record that granting Mateja physical care of Denis will better serve his long-term best interests. Based on this resolution we find it unnecessary to address Mateja's contention the court erred in denying her motion to reopen the record. We modify the district court's order accordingly and remand for a determination of visitation and support based on the parties' current financial and employment circumstances.
AFFIRMED AS MODIFIED AND REMANDED.