Opinion
No. 3-066 / 02-1370.
Filed April 30, 2003.
Appeal from the Iowa District Court for Boone County, DAVID R. DANILSON, Judge.
Scott Schellenberg appeals a district court custody order. AFFIRMED AS MODIFIED.
Dorothy Dakin of Kruse Dakin Law Office, Boone, for appellant.
Joseph Cahill of Cahill Law Offices, Nevada, for appellee.
Heard by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
Scott Schellenberg appeals a district court custody order. He contends the district court erred in awarding physical care of the parties' child to Darci Elliot. Alternatively, he requests this court modify the visitation schedule. We affirm as modified.
Background Facts and Proceedings. Scott and Darci are the biological parents of Austin, born November 24, 1992. They were never married but resided together until Austin was approximately two. Since the couple's separation, Austin has resided with Darci. He has been diagnosed with attention deficit hyperactivity disorder (ADHD) and depression.
Scott is thirty-one years old and a high school graduate. He presently lives in Ogden, Iowa, with his current wife, JoAnn. Scott works at Fareway Stores. In 2001 his gross annual income was $25,676. At the time of trial, the couple was expecting their first child. Darci is twenty-eight years old and has received a nursing certificate from Des Moines Area Community College. She lives in Ames, Iowa, with her fiancé, Eric. Darci is currently employed on an as-needed basis for Bethany Manor. In 2001 her gross annual income was $9,933. Darci and Eric have two children together: Corey and Melissa.
At trial Scott presented evidence of various deficiencies in Darci's parenting skills and care of Austin. Although the district court noted Darci's lack of effort to support Austin's education, the court awarded physical care of Austin to Darci. The court reasoned "awarding primary care to Scott would require Austin to change his residence, change his school, change his life-long primary caretaker, and split half-siblings." Scott was awarded visitation and ordered to pay a child support obligation of $458 per month. Scott appeals.
Standard of Review. Our review of a custody order is de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. Id. We give weight to the district court's fact findings, particularly with respect to credibility determinations, although we are not bound by them. Id. Physical Care. In any custody determination, the primary consideration is the best interests of the child. Marriage of Murphy, 592 N.W.2d at 683. Our analysis is the same regardless of whether the parties were married. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). The court's objective is to place the child in the environment most likely to bring them to healthy, physical, mental, and social maturity. Id. We identify numerous factors to help determine which parent should serve as the primary caretaker of the child. See Iowa Code § 598.41(3) (2003).
This is one of the closest cases this court has confronted on the issue of physical care. We have a learned trial judge who listened to all the evidence over several daysand wrote a detailed and specific decision concerning his reasons for awarding physical care of Austin to Darci. The district court concluded:
In consideration of all the factors . . . this Court is convinced that it is in the best long-term interest of Austin to remain in the physical care of Darci. She has provided the primary physical care for Austin throughout his nine years of life. Her residence and life appear to be more stable than in the past and she has fostered Scott's relationship with Austin. Her attention to Austin's educational needs certainly needs improvement. However, Austin has benefited by the fact that this is an area of strength of his father. Scott's minimal financial support over the past 6 ½ years is also significant factor in this determination. Scott has presented evidence to show that his home environment would be best suited for Austin, a child with ADHD. In this effort, Scott attempts to show that he and JoAnn can provide Austin with a more consistent structured, and predictable routine that Darci. A structured environment is clearly better for children with ADHD, according to Dr. Lelwica, as it reduces conflict and tension. Although Scott's evidence shows that his household is consistent and predictable, the work schedule of both Scott and JoAnn varies from week to week. In comparison, Darci is essentially a stay-at-home mom at present who would like to start a daycare in her home. Awarding primary care to Scott would require Austin to change his residence, change his school, change his life-long primary caretaker, and split half-siblings. Notwithstanding some of the benefits of Scott's proposed environment, Austin's best interests are served by awarding primary care to Darci.
In assessing a custody order, we give considerable weight to the judgment of the district court, which had the benefit of hearing and observing the parties firsthand. In re Marriage of Ford, 563 N.W.2d 629, 630-31 (Iowa 1997). On the other hand, we have a father who is very conscientious and attentive to Austin's educational needs and behavioral problems. The district court acknowledged this and indicated if this were the sole factor then Scott should be awarded physical care of Austin.
We have carefully reviewed all the evidence and the district court's opinion. We reluctantly conclude that this is a case where we should defer to the district court on the issue of physical care. However, we are very concerned about Darci's ability to act consistently in the best interests of Austin in the areas of education and behavioral problems. Therefore, we note this decision is "written in sand" rather than "written in stone." We caution and admonish Darci that consistency in these areas is a requirement of this decision and simply not a suggestion. We also note any future lack of consistency should be viewed seriously in any action by Scott to modify the physical care provisions of the decree.
Visitation. Scott, in his alternative argument, argues he should have been granted midweek visitation and four weeks of summer visitation. In establishing visitation rights, our governing consideration is the best interests of the child. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). In this regard, we have stated that, generally, liberal visitation rights are in the child's best interests. Id. After carefully reviewing the visitation schedule, we find Scott should be given four weeks of summer visitation to assure maximum continuing physical and emotional contact.