Opinion
No. 3-896 / 03-0495.
Filed December 10, 2003.
Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.
Brandi Kempker appeals the district court decision granting primary physical care of the parties' child to John Weeks. AFFIRMED.
Dennis Bjorklund of Bjorklund Law Firm, L.L.C., Coralville, for appellant.
Emily Dean of Saunders, Humphrey Johnson, Fort Madison, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
I. Background Facts Proceedings
John Weeks and Brandi Kempker are the parents of Megan Weeks, born on April 24, 2001. John and Brandi lived together for a period of time, but never married. They separated on February 14, 2002. John filed a petition seeking primary physical care of Megan.
John was thirty-one years old at the time of the paternity hearing. He has a high school education. John injured his neck and upper back in an automobile accident in 1996 and continues to suffer pain. He has periodic migraine headaches. John has also had depression. John's ability to work is greatly reduced, and he receives social security disability benefits of $695 per month. Megan receives a social security payment of $305 per month as John's dependent. Occasionally, John helps out at his parents' ice cream shop, and he receives some income from this. John owns a trailer home, where he lives.
Brandi was twenty-seven years old at the time of the paternity hearing. She has a ninth-grade education. Brandi does not have any physical problems, but was unemployed at the time of the hearing. Brandi lived with her mother and her daughter, Kai, who was nine years old. Brandi has another child, Cassandra, who lives with her father.
Both parents have exhibited some problems. At the time of Megan's birth, nurses became concerned because Brandi used profanity and did not wish to be awakened to feed the baby. Megan was diagnosed with failure to thrive and was hospitalized when she was about one month old. The Department of Human Services became involved with the family. Within a few months Megan was on track for her weight. There were numerous reports that Brandi used foul language when referring to her children and John. The department again became involved in October 2002, when Brandi allowed a fifteen-year old to take Megan for a long walk in her stroller in cold and rainy conditions.
There were also reports that John had anger management problems, and at one point admitted himself to a psychiatric unit for "temper problems." On the date the parties separated, John was arrested for domestic abuse. John had Megan in his car, Brandi tried to remove her, and a tussle ensued.
The district court awarded the parties joint legal custody and determined John should have primary physical care of Megan. The court concluded:
[T]he fact that John has his own home, the support of a stable extended family and the fact that just as recently as October 31, 2002, Brandi was demonstrating poor judgment and maturity concerning the care and supervision of Megan . . . the Court better serves Megan's best interests by allowing her to live with her father and, as a result, separating Megan and Kai.
Brandi was granted liberal visitation with Megan and ordered to pay child support. Brandi appeals.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Merits
Brandi contends she should have been granted primary physical care of Megan. She states that her parenting skills are superior to those of John. She also asserts that her witnesses were more credible than those who testified in support of John. In the alternative, Brandi asks to have Megan placed in the parties' joint physical care.
The controlling consideration in child custody issues is the best interests of the child. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). The court determines placement according to which parent can minister more effectively to the child's long-range best interests. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984); In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct.App. 1998). The court's objective is to place the child in the environment most likely to bring the child to healthy physical, mental, and social maturity. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). In a custody case, our legal analysis is the same whether the parents have ever been married or not. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988).
We have some concerns about John's problems with anger management. See In re Marriage Barry, 588 N.W.2d 711, 713 (Iowa Ct.App. 1998) ("Domestic abuse is, in every respect, dramatically opposed to a child's best interests."). John's problems, however, seem to be related to the stress of the parties' relationship. Furthermore, John recognized that he needed help to deal with his temper and sought counseling.
There are far more serious concerns about Brandi's inability or unwillingness to properly care for Megan. The child was admitted to the hospital on May 30, 2001, for failure to thrive due to inadequate feeding and thrush. She was also admitted a second time on June 4, 2001, due to dehydration and a urinary tract infection. The district court noted this and further stated in the decree entered on February 19, 2003:
It appears that while Megan was hospitalized on these two occasions, Brandi was at the hospital more than John. Brandi's behavior at the hospital was totally inappropriate and disruptive. Brandi did not appear to have her daughter's best interests in mind during this period of time. An example is that due to Megan's very low weight, the doctor directed that the child be put on a regular schedule for feeding. This required her to be awakened on some occasions so that her feeding would be kept on track. Brandi told hospital personnel that she was not going to wake the baby up to feed her and that when she went home, she was not going to wake up the baby to feed her then. In fact, Brandi is quoted as saying about the doctor," If he thinks I'm going to get up every two hours to feed this little shit, then I will tell him something else."
We also find that Brandi's excessive use of vulgar and derogatory language may be considered a type of verbal abuse, which should also be seriously considered. Unlike John, Brandi's abusive conduct was at times directed at her children. Several witnesses testified that Brandi called her children, "little bitch," "brat," "bastard," "jackass," or "shit." The children's babysitter testified Brandi would yell and scream at the children, and stated, "it was mainly verbal abuse."
Brandi points out that there is a preference for not separating siblings, and asserts Megan should not be separated from her half-sibling, Kai. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993) ("Siblings in dissolution actions should be separated only for compelling reasons."). The district court found there were good and compelling reasons to separate Megan and Kai, noting there was little in the record describing the girls' relationship. The girls were about eight years apart in age. The children can still have a substantial amount of time together through visitation.
As noted above, we give weight to the factual findings of the district court, especially when considering the credibility of witnesses. See Iowa R. App. P. 6.14(6)( g). The district court found John and his witnesses were more credible than Brandi and her witnesses. John received strong support from his family at the paternity hearing. For all of these reasons, we determine the district court properly determined Megan should be placed in the physical care of John.
We determine joint physical care would not be a workable solution for these parties. A joint care arrangement is possible if the parents are able to cooperate and respect each other's parenting and lifestyles. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). For much of the paternity proceedings, there was a no-contact order between these parties, and the transfer of Megan for visitation was under the auspices of a third-party.
We affirm the decision of the district court.