Opinion
No. 3-099 / 02-1732.
Filed April 30, 2003.
Appeal from the Iowa District Court for Ida County, DEWIE J. GAUL, Judge.
Jenny Meyer appeals the district court order awarding physical care of the parties' son to Chris Horton. AFFIRMED.
Kristal Phillips of Martin, Wibe, Cozine and Phillips, L.L.P., Ida Grove, and Thaddeus Cosgrove of Cosgrove Law Firm, Ida Grove, for appellant.
Mary Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellee.
Heard by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
Jenny Meyer appeals the district court order awarding physical care of Dakota to Chris Horton. We affirm.
Background Facts and Proceedings. Jenny Meyer and Chris Horton are the biological parents of Dakota, born October 1, 2001. Although Jenny and Chris were never married, they resided together until December 2001. Jenny also has a child from another relationship, Sidney, born March 1, 1998. When the couple separated, Jenny and her two children moved to her mother's home in Holstein, Iowa.
At the time of trial, Jenny was twenty-one years old, and Chris was nineteen years old. Both parties are high school graduates. Jenny is employed by CareAge Hills as a CNA. Although she was on medical leave at the time of trial, she indicated she intends to continue her employment. Chris is currently taking college classes and has applied for a part-time position at HyVee.
Jenny filed a petition to establish paternity and support against Chris. A temporary hearing was held January 25, 2002. The parties stipulated to joint legal custody with physical care awarded to Jenny. Subsequently, a trial was held September 26, 2002. The district court continued joint custody but granted Chris physical care of Dakota and ordered Jenny to pay child support. In making its decision, the court stated:
The court after seeing and listening to each party believes that the defendant is far more likely to better minister to Dakota's long-term interest. Two aspects suggest a contrary decision, but they do not overcome the factors favoring the defendant as physical caretaker. One of those factors is that Dakota will be separated from his half-sister only two-and-a-half years older. However, the prospect of visitation will overcome some of the adverse effects of such separation. The other adverse factor is the busy schedule of work and education that defendant presently has, but it seems clear that the defendant, with the support of his family, will be able to overcome the difficulty connected therewith and in the long run the best interest of Dakota will be well-served both by defendant having his physical care and by defendant's industry and efforts to obtain training in work congenial to him.
Jenny 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. 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 determining which parent should be granted physical care, we consider a number of factors, including the child's needs and characteristics, the parents' abilities to meet the child's needs, the nature of each proposed home environment, and the effect of continuing or disrupting the child's current status. In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The court's objective is to select the environment most likely to cultivate a physically, mentally, and socially healthy child. Murphy, 592 N.W.2d at 683.
Before discussing the merits of this case, we must first address Jenny's contention that the district court erred in its fact finding and, therefore, we should not rely on the court's findings. We acknowledge the district court made errors in fact finding, yet our duty is to review de novo. We have reviewed the entire record and find it is in Dakota's best interests to be placed with Chris. First of all, we are concerned with Jenny's ability to care for Dakota. On two occasions, while in Jenny's care Dakota received a black eye. Also, Dakota has had bruises, rashes between the folds of his skin, and bugs in his hair. On another occasion, Dakota got a human hair wrapped around his toe, and it had to be removed surgically.
Secondly, we are concerned Jenny would not support Chris's relationship with Dakota if she were granted physical care. Iowa Code section 598.41(3)(e) (2001) authorizes a court to consider "whether each parent can support the other parent's relationship with the child." The record clearly indicates Jenny has interfered with Chris's visitation with Dakota. Jenny denied Chris visitation from the time she moved out of his residence in December 2001 until after the district court approved a stipulation providing for visitation in January 2002. Even after the stipulation was approved, Chris experienced difficulties in exercising visitation. The atmosphere was often hostile and unpleasant due to the fact Jenny's mother confronted Chris with obscenities and criticized him in front of Dakota and Sidney.
Finally, we are troubled by Jenny's vindictive behavior towards Chris. In determining what is in the best interests of the child we can look to a parent's past performance because it may be indicative of the quality of the future care that parent is capable of providing. In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct.App. 1992) (citing In reDameron, 306 N.W.2d 743, 745 (Iowa 1981) (citations omitted)). In the two and one-half years Jenny and Chris spent together, Sidney and Chris developed a close relationship. Once Jenny and Chris separated, Jenny prevented Chris from seeing Sidney. On at least two occasions, Jenny kept Sidney in her bedroom and would not allow her to see Chris even though Sidney would yell "Mommy, let me out, unlock the door." In another incident, Chris brought both Dakota and Sidney an Easter basket. Jenny would not allow Sidney to keep the basket because she was mad at Chris. As a mother, Jenny should have helped Sidney through this transition rather than using her to get back at Chris. For the reasons set forth above, we find it is in Dakota's best interests to be placed with Chris.
Jenny points to Dakota's relationship with Sidney and argues there is no compelling reason to separate Dakota from his half-sister. While courts do attempt to keep siblings together whenever possible, if the record indicates separation might better promote the long-term best interests of the child, then a court may depart from the rule. In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). As mentioned previously, Dakota's best interests are served by granting physical care to Chris. Further, we find there is insufficient evidence in the record to support a finding that Dakota and Sidney have a close relationship. At the time of trial, Dakota was one and one-half years old, and Sidney was four years old. Consequently, the best interests of Dakota outweigh the strong interest in not separating half-siblings.
We also find no merit in Jenny's other argument that the district court admitted and relied on hearsay in its determination. After carefully reviewing the alleged hearsay statements, we find the statements were not offered to prove the truth of the matter asserted. See Iowa R. Evid. 5.801( c). Rather, the statements were offered to show the nature of the environment during visitation.