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Legal Custody vs. Physical Care.

“Legal custody” or “custody” means an award of the rights of legal custody of a minor child to a parent under which a parent has legal custodial rights and responsibilities toward the child. Rights and responsibilities of legal custody include but are not limited to decision making affecting the child’s legal status, medical care, education, extracurricular activities, and religious instruction.

See Iowa Code Section 598.1

By contrast, “physical care” means the right and responsibility to maintain a home for the minor child and provide for the routine care of the child.

See Iowa Code Section 598.1(7).

Joint Legal Custody and Joint Physical Care.

“Joint custody” or “joint legal custody” means an award of legal custody of a minor child to both parents jointly under which both parents have legal custodial rights and responsibilities toward the child and under which neither parent has legal custodial rights superior to those of the other parent. Rights and responsibilities of joint legal custody include but are not limited to equal participation in decisions affecting the child’s legal status, medical care, education, extracurricular activities, and religious instruction.

See Iowa Code Section 598.1(3).

By contrast, “joint physical care” means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child including but not limited to shared parenting time with the child, maintaining homes for the child, providing routine care for the child and under which neither parent has physical care rights superior to those of the other parent.

See Iowa Code Section 598.1(4).

Preference for Joint Legal Custody

“The legislature and judiciary of this State have adopted a strong policy in favor of jointcustody from which courts should deviate only under the most compelling circumstances.” In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). “Unless otherwise ordered by the court in the custody decree, both parents shall havelegal access to information concerning the child, including but not limited to medical, educationaland law enforcement records.” See Iowa Code Section 598.41(1)(e).

A finding of a history of domestic abuse[link to my domestic abuse page] creates an exception to the preference for joint legal custody.  See Iowa Code Section 598.41(1)(b) and 598.41(2)(c).

Domestic abuse is therefore, very often, a key issue in a child custody case.  Likewise, whenever there is an allegation of domestic abuse between parents of minor children, the stakes are high, because a finding of abuse shifts the presumption away from joint legal custody.  A person found guilty of domestic abuse will face a difficult, uphill battle, if the relationship later breaks down to the point that the other parent files a legal action seeking custody of the children.

Sole legal custody can also be awarded to one parent when the court finds clear and convincing evidence, pursuant to the factors in Iowa Code Section598.41(3), that joint custody is unreasonable and not in the best interest of the children. See Iowa Code Section 598.41(2)(b)

See also, In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996).

Determination of Physical Care

 The guiding principle in child custody cases for determining where to place the physical care of the children is “the best interests of the child.” Iowa Code section 598.41(3) sets forth the factors the court must consider in awarding custody. These include:

  • Whether each parent would be a suitable custodian for the child.
  • Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.
  • Whether the parents can communicate with each other regarding the child’s needs.
  • Whether both parents have actively cared for the child before and since the separation.
  • Whether each parent can support the other parent’s relationship with the child.
  • Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.
  • Whether one or both the parents agree or are opposed to joint custody.
  • The geographic proximity of the parents.
  • Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.
  • Whether a history of domestic abuse, as defined in section 236.2, exists. In determining whether a history of domestic abuse exists, the court’s consideration shall include but is not limited to commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 664A.7, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A.
  • Whether a parent has allowed a person custody or control of, or unsupervised access to a child after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 692A.

These factors apply in marriage dissolution proceedings as well as custody cases involving unwed parents.  See Jacobson v. Gradlin, 490 N.W.2d 79, 80 (Iowa Ct. App. 1992); and Heyer v. Peterson, 307 N.W.2d1, 7 (Iowa 1981).   The law gives no benefit to one gender of parent over the other—what matters is the best interests of the children.  See In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct. App. 1985).

When will the Court award Joint Physical Care?

Prior to recent legislative changes, the Iowa courts were reluctant to grant shared physical care, also known as “joint physical custody” or “divided care.”  See In re Marriage of Burham, 283 N.W.2d 269 (Iowa 1979) (stating factors disfavoring joint physical care).  Recent changes to Iowa Code Chapter 598 have created a more favorable environment for the court to grant joint physical custody to both parents.  The new law, codified at Iowa Code Section 598.41(5) provides:

  • If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. Prior to ruling on the request for the award of joint physical care, the court may require the parents to submit, either individually or jointly, a proposed joint physical care parenting plan. A proposed joint physical care parenting plan shall address how the parents will make decisions affecting the child, how the parents will provide a home for the child, how the child’s time will be divided between the parents and how each parent will facilitate the child’s time with the other parent, arrangements in addition to court–ordered child support for the child’s expenses, how the parents will resolve major changes or disagreements affecting the child including changes that arise due to the child’s age and developmental needs, and any other issues the court may require. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
  • If joint physical care is not awarded under paragraph “a”, and only one joint custodial parent is awarded physical care, the parent responsible for providing physical care shall support the other parent’s relationship with the child. Physical care awarded to one parent does not affect the other parent’s rights and responsibilities as a joint legal custodian of the child. Rights and responsibilities as joint legal custodian of the child include, but are not limited to, equal participation in decisions affecting the child’s legal status, medical care, education,extracurricular activities, and religious instruction.

The Iowa Supreme Court has explained that, when joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights. Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care.

The non caretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child.  See In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007).

Split Physical Care.

Split physical care is when the court grants primary care of one or more of the children to each of the parents. See Iowa Code Section 598.41(6). This must not be confused with shared physical care in which the parents alternate time with all of the children (typically a week with mom and then a week with dad). The Iowa Supreme Court has determined that “Only in rare cases is split . . . physical care appropriate.” In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).Iowa courts generally oppose split physical care “because it deprives children of the benefit of constant association with one another.”  In re Marriage of Will, 489 N.W.2d at 398.

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