Opinion
No. 2-322 / 01-1335
Filed September 11, 2002
Appeal from the Iowa District Court for Clinton County, C. H. Pelton, Judge.
A mother appeals a district court order granting grandparent visitation with her minor son. AFFIRMED AS MODIFIED.
John R. Newman of Wehr, Berger, Lane Stevens, Davenport, for appellant.
Michael J. Walton of Otteson and Walton, Davenport, for appellee.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Cristal Collis gave birth to Jonathon. A paternity decree established Brad Robbins as the father. Under the decree, Brad was to have visitation every Saturday for a period of time and, later, every other weekend. Brad exercised visitation for a short period, then disappeared. After he disappeared, Brad's father, Paul Robbins, petitioned for grandparent visitation. The district court granted his petition and awarded him visitation for eight hours per day on the first and third Sundays of the month. This amounted to approximately ten more hours per month than Cristal sanctioned. Cristal appeals. She claims Iowa Code section 598.35(6) (1999), authorizing grandparent visitation under these circumstances, violates substantive due process protections guaranteed by the United States and Iowa Constitutions. She also asserts that Paul's relationship with the child is not substantial enough to warrant as much visitation as was ordered. Finally, she maintains that visitation in the amount fixed by the court is not in the child's best interests.
Cristal did not preserve her constitutional challenge for review, as she did not raise it before the district court. In re Hassel, 600 N.W.2d 335, 337 (Iowa Ct.App. 1999). Therefore, we decline to consider it.
As for her argument that Paul lacked a substantial relationship with the child, we note that Paul made an effort to see his grandson every time his son Brad exercised visitation. We believe, therefore, that this statutory requirement is satisfied. See Iowa Code § 598.35.
Cristal's third argument, that the amount of visitation ordered by the court is not in the best interests of the child, is subsumed within her constitutional challenge but is essentially an independent argument. Cristal points out that she and her husband work during the week and need weekend time for family activities and sibling bonding. She also notes that her proposed visitation schedule of one day a month for six hours is consistent with the amount of time Paul was accustomed to spending with his grandson. Finally, she sees no basis for the court's requirement that the visitation "evolve as the child becomes older into expanded overnight visitation."
We have held that a grandparent does not have as extensive rights to visitation as a parent. In re Hough, 590 N.W.2d 556, 559 (Iowa Ct.App. 1999). Although Jonathon's father has not exercised the visitation to which he is entitled, nothing prevents him from doing so. See Id. This order, together with the grandparent visitation order and particularly the portion mandating future overnight visits, would severely restrict Cristal's weekend time with her son. Id. Accordingly, we modify the decree to provide for grandparent visitation with Paul Robbins one Sunday per month for six hours.
AFFIRMED AS MODIFIED.