Custody and Visitation

Child custody issues can often be some of the most contentious battles in a divorce proceeding. The bonds between a parent and child are sacred. Child custody determinations made during a divorce can shape the time and relationship a parent has with his or her child for the remainder of his or her childhood. This is why crafting an appropriate and effective child custody order or, in the alternative, effectively litigating a child custody dispute so that a judge can do the same, is so important.     

A child custody order is more than who gets the children and who gets them on the weekends.  To begin with, a custody order actually involves two separate concepts- legal custody and physical care.  Custody or legal custody is the award of rights and responsibilities toward the child that includes the right to make decisions on the child’s behalf, such as decisions affecting medical care, education, day care, location of residence, extracurricular activities, and religious instruction. Joint legal custody is standard in Iowa absent extenuating circumstances and simply means that both parents continue to keep these rights and responsibilities they already enjoy. In the alternative, sole legal custody can be granted only in exceptional circumstances, including cases where there is a history of domestic abuse between the parties or against the children. The ultimate determination is what is in the best interests of the child or children. 

By contrast, physical care or physical placement refers to the extent to which a parent will be charged with primary care giving responsibilities. This includes such responsibilities as maintaining a home for the child, and providing the primary routine care of the child. Physical care can be shared between the parties and has become more prevalent over the past decade. This means that each party literally shares the parenting responsibilities equally including time with the child or children. This can generally only occur in situations where the parents can get along to some extent and live in reasonably close proximity to one another.  It is still most common that one parent receives primary physical care. In these situations, the other parent is then generally afforded visitation.

Several considerations go into the physical care and visitation determination including:

  • 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 and care.
  • The geographic proximity of the parents.

Again, the underlying and most critical consideration of the physical care determination is what will be in the best interests of the child.  The Iowa Supreme Court has made it clear in a case called In re Marriage of Hansen (2007) that the trial court must consider joint physical care if one party requests it, but there is no presumption in favor of joint physical care and the court is by no means required to award joint physical care to the parties.  The court is only required to determine what is in the best interests of the child and explain why it believes that joint physical care is or is not appropriate. In making that determination, the court will look at the historical care giving arrangement between the parents, the ability of the parties to communicate and show each other respect, the degree of conflict between the parents, and the degree to which the parties agree about the day-to-day matters regarding raising the children.

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