JOHN TRACY MOORE, III, Petitioner-Appellant, vs. AMANDA S. LUKASZEWICZ, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-851 / 06-0639
Filed December 28, 2006
JOHN TRACY MOORE, III,
Petitioner-Appellant,
vs.
AMANDA S. LUKASZEWICZ,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, William L. Thomas,
Judge.
John Tracey Moore III appeals from an initial child custody determination.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Frank J. Nidey of Nidey, Peterson, Erdahl & Tindal, P.L.C., Cedar Rapids,
for the appellant.
Linda Hansen Robbins, Cedar Rapids, for the appellee.
Heard by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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SACKETT, C.J.
John Tracey Moore III appeals from an initial child custody determination.
He contends that he, not his two children’s mother, Amanda Cooper, should have
been granted primary physical care or that he and Amanda should have shared
care on a week-to-week basis. We affirm in part, reverse in part and remand.
The controlling consideration in determining custody is the interest of the
child. Iowa R. App. P. 6.14(6)(o). In deciding this question, we review the record
de novo. Iowa R. App. P. 6.4. We give weight to the findings of the trial court,
but are not bound by them. See In re Marriage of Novak, 220 N.W.2d 592, 597
(Iowa 1974). There is no inference favoring one party as opposed to the other in
deciding which one should have custody. See In re Marriage of Bowen, 219
N.W.2d 683, 688 (Iowa 1974). We determine each case on its own facts to
decide which parent can administer more effectively to the long-range interest of
the child. In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974). “The
critical issue is determining 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 original custody proceeding.’” In re Marriage of
Ullerich, 367 N.W.2d 297, 299 (Iowa Ct. App. 1985) (quoting Bowen, 219 N.W.2d
at 689). The criteria governing custody decisions are the same regardless of
whether the parties are dissolving their marriage or are unwed.
Lambert v.
Everist, 418 N.W.2d 40, 42 (Iowa 1988).
At the time of trial, John was twenty-eight years old and Amanda was
twenty-six.
John is in good health.
Amanda was diagnosed with multiple
sclerosis in 2003 and takes medication.
John and Amanda first met and
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established a relationship when Amanda was fourteen. In 1996, at age sixteen,
Amanda became pregnant and gave birth to the parties’ first child, a daughter.
She lived with her parents while she finished high school and at eighteen she
and the child moved in with John. The three lived in the same residence for
several years, separated and then reunited. Amanda became pregnant with the
parties’ son, who was born in January of 2002. The parties’ relationship ended in
September of 2002.
The parties have both been attentive to their children. However, both
have had difficulties, have been guilty of indiscretions, and have created at times
a chaotic situation for the children because of their apparent inability to work
together for the children’s benefit.
At the time of the custody hearing, John was employed although he had
recently taken a lesser paying job contending he had done so to have more time
with his children. His wife is gainfully employed and her child lives with the
couple in a four-bedroom home. John’s wife had a good relationship with the
children and their home seemed relatively stable.
Amanda also is gainfully employed and recently had an advancement and
increase in pay. She too is married. She married her husband while he was
incarcerated in the Linn County jail. He subsequently was incarcerated in the
Fort Dodge, Iowa, correctional facility. He is now released, and at the time of the
hearing was looking for work.
He apparently had an earlier job which he
contends he lost because he was sick.
The district court found Amanda had been the children’s primary caretaker
during their lifetimes. The court found the children were cared for, prospering,
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and healthy, and that both parents had been attentive to the children and should
continue to have substantial involvement with them. The court voiced concern
about the stability of Amanda’s relationship with her husband and John’s
voluntary reduction in income as a possible prejudice to the children.
John contends the district court should be reversed and he and Amanda
should share primary care or that he should be named the primary care parent.
John contends Amanda has not been the primary care parent but he too has
assumed substantial care for the children during their lifetimes.
John is
concerned about the children’s relationship with Amanda’s current husband, her
financial instability, the two pit bulls in her home, her numerous traffic offenses,
her failure to be attentive to the children’s medical needs, and her conviction of
operating a motor vehicle while intoxicated. He points out she was driving with
the children while her license was under suspension, ran a red light and was hit
by another car. He contends their daughter, who was not wearing a seat belt,
was injured and Amanda failed to seek medical care for the child and failed to
inform John of the accident. He said when he learned of the incident he took the
child to the emergency room and found she had a head injury.
John also
contends Amanda failed to obtain treatment for their daughter’s serious case of
athlete’s foot. He argues he has been more attentive to the children’s medical
needs than has Amanda.
Amanda argues she has been the primary care parent. She says John
has physically abused her and his current wife and that he assaulted another
person. Amanda is unhappy that John reduced his income by about $20,000 a
year. She contends the children have an excellent relationship with her new
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husband who had lived in her home for about three months prior to the custody
hearing. She further contends that John does not support her position with the
children.
We agree with the district court that both of the parties have been
substantially involved in their children’s lives and that at times Amanda has been
the primary care parent.
As both parties have remarried we recognize their spouses will have
substantial relationships with the children.
Amanda and John’s wife have a
hostile relationship with each other which is not in the children’s interest. Each
seeks to blame the other for the problems. John’s wife testified Amanda pushed
her into a car door and there is evidence that exchanging the children has
become so difficult that it is done at a neutral site and not at either parties’ home.
We do find, however, that John’s wife is a stable figure in the household
and contributes substantially to the financial well-being of her family.
She
acknowledged that early in her relationship with John police were called because
of a dispute. She testified the couple sought counseling and their relationship
has been good. Furthermore, there is no evidence of any use of physical force
on John’s part since he and his wife sought counseling.
We cannot be as positive about Amanda’s husband. They married while
he was in jail awaiting a probation revocation hearing. He had a substantial
record of convictions including possession of marijuana, absence from custody, a
drug stamp tax violation, operating a motor vehicle while intoxicated, assault
causing bodily injury, escape, a revocation of probation, driving while his license
was under suspension, and criminal trespass. During his incarceration at the
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Fort Dodge facility he took parenting classes and he had substance abuse
treatment, but he has failed to participate in aftercare since his release. At the
time of trial he was unemployed.
women.
He has three daughters by three different
One child is seven, and the other two are four.
He pays minimal
support for his children. The children do visit in his home every other weekend.
As did the district court, we have problems with Amanda’s choice of a
husband. His failure to seek aftercare for his addiction is of serious concern. He
did take a parenting class and there is no evidence he has been abusive to these
children, however, his time with them at the time of trial was limited. Other than
the short times he spent in their home, his exposure to them came when Amanda
took the children with her for visits at the correctional facility.
“[I]f a parent seeks to establish a home with another adult, that adult’s
background and his or her relationship with the child[ren] becomes a significant
factor in a custody dispute.” In re Marriage of Decker, 666 N.W.2d 175, 179
(Iowa Ct. App. 2003).
There are two reasons for this: (1) because of the place the
companion will have in the child or children's lives, and (2) not less
significantly, because the type of relationship the parent has sought
to establish and the manner he or she has established it is an
indication of where that parent's priority for his or her children is in
his or her life.
Id.
Amanda’s husband has a long history of disregard for the law and
substance abuse issues. We cannot on this record determine that his history will
not repeat itself. In the time since his release from the correctional facility he has
failed to become gainfully employed for any reasonable period.
He is not
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involved with aftercare. While he claims to have reformed and we hope he has,
we cannot dismiss our concern that he may put these children at risk.
John first contends that there should be joint primary physical care. While
we appreciate his willingness to keep Amanda substantially involved in the
children’s lives, we fail to see that sharing the children on a week-to-week basis
or other sharing of primary care will be successful. Both parents need to work to
improve their communication that involves the children. The hostility that exists
in this situation prevents us from considering joint primary physical care as an
option. We affirm the district court’s denial of joint primary physical care.
John next contends that he should be the primary custodian. Amanda
clearly loves her children and has in many instances been attentive to their
needs and we commend her for this. We also commend her for being gainfully
employed and having been promoted at her job. However, at this time, we find
the record supports a finding that John’s home is more stable and offers the
children the better opportunity. As we have discussed, we have our concerns
about Amanda’s husband and question the role model he presents the children.
We also note that prior to her association with him Amanda had another
questionable relationship.
We also share John’s concern about Amanda’s
decision to keep two pit bulls in her home with young children. We reverse the
denial of John’s petition for primary physical care and we modify to name John
the primary care parent. We remand to the district court to fix child support and
appropriate visitation. We award no attorney fees. Costs on appeals are taxed
one half to each party.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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