Upon the Petition of GAVIN L. CURTIS, Petitioner-Appellee, And Concerning ELIZABETH BRODERSON, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-724 / 06-0700
Filed November 16, 2006
Upon the Petition of
GAVIN L. CURTIS,
Petitioner-Appellee,
And Concerning
ELIZABETH BRODERSON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve,
Judge.
The respondent appeals from the district court’s order granting physical
care of their minor child to the petitioner. AFFIRMED.
Anna Moyers and John E. Beasley, Iowa City, for appellant.
Neva Rettig-Baker of Baker Law Office, Muscatine, for appellee.
Heard by Huitink, P.J., and Vogel, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2005).
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VOGEL, J.
Elizabeth Broderson appeals from the district court’s order pursuant to
Iowa Code chapter 600B (2005) establishing paternity, custody, visitation, and
child support for her daughter, Jocelyn. Following our de novo review of the
record and arguments on appeal, see Iowa R. App. P. 6.4, we concur with the
district court’s placement of Jocelyn in the physical care of her father, Gavin
Curtis.
Background Facts and Proceedings.
Jocelyn was born in June 2005 to Elizabeth and Gavin, after the couple
had a brief relationship during the summer and fall of 2004. Elizabeth and Gavin
were never married, and Gavin filed a petition ten days after Jocelyn’s birth to
establish paternity, custody, visitation, and support pursuant to Iowa Code
chapter 600B.
At the time of trial in January 2006, Gavin was twenty years old and a high
school graduate. For the previous sixteen months he had worked full-time as a
machinist for Allsteel in Muscatine, Iowa. He lives in a nearly new three-bedroom
mobile home in Muscatine with his fiancée Courtney Davis, who works full-time
as a certified nurse’s aide (CNA) and is attending college to obtain a bachelor’s
degree in nursing.
Gavin and Courtney dated for an extended time in high
school before he dated Elizabeth, and they reunited after Gavin’s relationship
with Elizabeth ended. They plan to marry sometime in the near future.
Elizabeth is twenty-one years old and enrolled full-time at Muscatine
Community College, where she is studying towards a bachelor’s degree in
human services through Wesleyan College. Since December 2005, Elizabeth
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has lived in a two-bedroom apartment in Muscatine. Elizabeth lived primarily
with her maternal grandmother or father and stepmother in Muscatine during the
pregnancy and the six months following Jocelyn’s birth. In August 2005, without
Gavin’s consent, she took Jocelyn to Las Vegas, Nevada, intending to reside
with her mother. After a couple of weeks Elizabeth decided to move back to
Muscatine. Shortly thereafter, Elizabeth proposed sending Jocelyn back out to
Las Vegas, to live with her mother for a few months. When Gavin offered to
instead have Jocelyn live with him, Elizabeth refused, as Gavin would not commit
to returning Jocelyn to Elizabeth when Elizabeth felt she was able to care for her.
Elizabeth worked about fifteen hours a week providing child care at the
Muscatine County YMCA for approximately eighteen months prior to trial, but
pared down her schedule to ten hours a week with her return to school full-time.
The record discloses substantial discord between the parties, regarding
the care of their daughter. Elizabeth alleged at trial that Gavin did not want her to
have the baby, denied paternity, and was lax on his responsibilities after
Jocelyn’s birth by not providing her with necessary supplies or voluntarily paying
child support. Gavin testified that after Jocelyn’s birth, he became increasingly
concerned with Elizabeth’s drinking and social activities and their effect on
Jocelyn’s care. Gavin also alleged Elizabeth withheld visitation and only granted
him visitation at her discretion. 1 Although his visits did not follow a set schedule,
Gavin was able to see Jocelyn on average at least once a week with frequent
overnight visits. The record reflects that Gavin did voluntarily support Jocelyn to
1
Neither party requested temporary orders regarding custody, visitation, or child support
prior to trial.
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a limited extent, by supplying diapers, clothing, and other items Elizabeth
specifically requested. He made four voluntary child support payments of $79.65
according to the appropriate guideline level between mid-December 2005 and
trial in February 2006.
At the time the petition was filed in June 2005, Gavin requested joint legal
custody and visitation upon his intention that physical care should be granted to
Elizabeth.
However, Gavin changed his position in September 2005 by
amending the petition to request physical care of Jocelyn. The parties stipulated
that Gavin was the biological father of Jocelyn and joint legal custody should be
granted. The trial on the contested issues of physical care, visitation, and child
support was held in February 2006. The district court ruled that physical care of
Jocelyn be placed with Gavin with liberal visitation to Elizabeth. Elizabeth filed a
motion for new trial and a motion to enlarge under Iowa Rule of Civil Procedure
1.904(2), which were both denied except for the clarification of two small points.
Elizabeth appeals, arguing the district court erred in determining (1) that
Gavin is better able to meet Jocelyn’s needs and daily care and (2) that Jocelyn’s
best interests are served by granting Gavin physical care.
Physical Care of Jocelyn.
Gavin filed the petition under Iowa Code chapter 600B to establish
custody, physical care, and visitation, and the evidence at trial and record on
appeal concerning physical care should be evaluated using the following factors:
1. The characteristics of each child, including age, maturity, mental
and physical health.
2. The emotional, social, moral, material, and educational needs of
the child.
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3. The characteristics of each parent, including age, character,
stability, mental and physical health.
4. The capacity and interest of each parent to provide for the
emotional, social, moral, material, and educational needs of the
child.
5. The interpersonal relationship between the child and each
parent.
6. The interpersonal relationship between the child and its siblings.
7. The effect on the child of continuing or disrupting an existing
custodial status.
8. The nature of each proposed environment, including its stability
and wholesomeness.
9. The preference of the child, if the child is of sufficient age and
maturity.
10. The report and recommendation of the attorney for the child or
other independent investigator.
11. Available alternatives.
12. Any other relevant matter the evidence in a particular case may
disclose.
In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). See also Heyer
v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981) (stating that the criteria for determining
custody should be the same whether the parents are dissolving their marriage or
are unwed).
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.
Iowa Code § 598.41(5)(b).
“Physical care” refers to the right and responsibility to maintain the
principal home of the minor child and to provide for routine care of child. In re
Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). In determining physical care
we look at each case on its own facts to decide which parent can “minister more
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effectively” to the long-range interest of the children. Winter, 223 N.W.2d at 166.
The critical issue in determining the best interest of the child is which parent will
do better in raising the child; gender is irrelevant and neither parent should have
a greater burden than the other in attempting to gain custody in an initial
proceeding. In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct. App.
1996). The objective is to place the child in an environment most likely to bring
the child to healthy physical, mental, and social maturity.
In re Marriage of
Murphy, 592 N.W.2d 681, 683 (Iowa 1999). While due consideration should be
given to the fact that one parent has been the historical primary care giver, that
fact is not controlling, Roberts, 545 N.W.2d at 343, and does not assure that
parent will be awarded physical care of the child. In re Marriage of Wilhelm, 491
N.W.2d 171, 172 (Iowa Ct. App. 1992).
Elizabeth’s main contention on appeal favoring placement of Jocelyn in
her physical care is that she has been Jocelyn’s primary caregiver and that
Jocelyn should remain with her to promote her stability.
That consideration,
however, is only one of many we look to in determining which parent is capable
of caring for Jocelyn more effectively. See Winter, 223 N.W.2d at 166-67. The
district court was concerned about the maturity of the two parents and the life
styles each led. Of primary concern was the amount of alcohol each consumed
and other “socializing” that may impact Jocelyn’s care. The district court found:
Although a number of these occasions took place while Jocelyn
was in the care of [Gavin], the Court finds that [Elizabeth’s]
testimony constitutes a very minimal estimate of the frequency of
such incidents, and that many or most of them have taken place at
times other than when [Gavin] was caring for Jocelyn. Although
this pattern of behavior may not be atypical for many 21 year olds,
the Court determines it is and should be for a person of that age
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who is the primary physical caretaker of an infant child. The Court
also has reservations about [Elizabeth’s] general level of judgment
in her personal affairs, as is reflected in the evidence.
We conclude that the district court’s findings are supported by the record.
Although we are not bound by the findings of the district court, we give deference
to them, particularly regarding issues of credibility, given the district court’s
opportunity to directly observe witness demeanor. In re Marriage of Forbes, 570
N.W.2d 757, 759 (Iowa 1997). The district court clearly believed that Elizabeth’s
prior inability to communicate and work with Gavin in the best interests of Jocelyn
placed Gavin in a better position to minister to Jocelyn’s needs.
This is
especially evident in Elizabeth’s decision to move to Nevada with Jocelyn less
than two months after her birth without any significant input from or notice to
Gavin, even though the petition in this case was pending at that time. In addition,
Elizabeth’s mother, Cathy Mousavinasab, testified that Elizabeth has seemed
overwhelmed at times and perhaps depressed since Jocelyn’s birth. Cathy did
testify that Gavin had been receptive prior to trial to reducing tension between
Elizabeth and himself regarding scheduling visitation, to provide Jocelyn as much
contact with both parents. The testimony at trial also reflected that Elizabeth on
several occasions altered or terminated Gavin’s visitation with Jocelyn,
oftentimes for no asserted reason. The district court found that Elizabeth “has
used the issue of voluntary child support as a quid pro quo for visitation with
[Jocelyn], and that she has at times canceled o[r] changed the terms of
scheduled visitation without good cause.”
In contrast, the testimony and evidence presented at trial demonstrates
that Gavin has done well to organize his life and become a reliable parent for
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Jocelyn. The district court specifically found Gavin to be generally more credible
than Elizabeth in his account of events. He has consistently been employed fulltime and secured adequate housing to care for her needs. Alcohol consumption
is much less of a concern at Gavin and Courtney’s home. He has consistently
shown flexibility and a willingness to work with Elizabeth to support her
relationship with Jocelyn and provide her with maximum time and exposure to
both parent’s care.
Jocelyn’s birth.
We do not minimize the position Elizabeth was in after
She was young, and overwhelmed with her responsibilities,
needing a place to live, a job, and more education. Gavin was simply more
settled at that point in his life, with a good job and from the district court’s
perspective, more maturity. As the district court noted:
Jocelyn has clearly bonded with both parents, and they both
unquestionably love and are concerned about the welfare of their
child. This is clearly not a case where either party is an unfit
parent. Instead, the Court must determine which parent can
provide the child with superior care, in an environment most likely
to serve the long-term best interests of the child. Based on the
evidence presented at trial and the previously-articulated facts, the
Court determines that [Gavin] has demonstrated the stability,
maturity and parenting capabilities which better enable him to
provide the primary home environment for Jocelyn during her
childhood.
With deference to the district court, which observed the parties first hand,
we agree that Jocelyn’s best interests are served by placing her physical care
with her father, Gavin, with liberal visitation to Elizabeth.
AFFIRMED.
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