NEIL CHRISTOPHER BERGER, Petitioner-Appellant, vs. VICTORIA MARIE RIOS, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-278 / 05-0976
Filed May 10, 2006
NEIL CHRISTOPHER BERGER,
Petitioner-Appellant,
vs.
VICTORIA MARIE RIOS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Marsha M.
Beckelman, Judge.
Petitioner appeals a district court ruling awarding primary physical care of
the parties’ child to respondent. AFFIRMED.
Patricia C. Kamath of Kamath Law Office, Iowa City, for appellant.
Victoria Rios, North Liberty, pro se.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
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HUITINK, J.
Neil Christopher Berger (Chris) appeals a district court’s ruling awarding
primary physical care of the parties’ child to respondent, Victoria Marie Rios
(Vicki). Vicki has not filed an appellee’s brief. That failure does not entitle Chris
to a reversal as a matter of right, but does provide a basis for sanctions. State ex
rel. Buechler v. Vinsand, 318 N.W.2d 208, 209 (Iowa 1982).
We limit our
discussion to the issue raised in Chris’s brief. Id.
I. Background Facts and Proceedings
Chris and Vicki met at a bar in 1993 and were “drinking buddies” for a
short period of time. As a result of their short-lived relationship, Vicki gave birth
to the parties’ child, Dalton, in August 1994. The parties never married. Chris
began paying child support after a court order establishing paternity and setting
child support was filed in 1996. Chris had some contact with Dalton during the
first years of his life, but did not try to establish visitation or custodial rights to
Dalton until filing a petition for custody in 2003.
Following a two-day trial, the district court filed its ruling in April 2005. The
court made extensive findings of fact and awarded Chris and Vicki joint legal
custody of Dalton, with primary physical care to Vicki, subject to reasonable,
liberal visitation by Chris. Chris appeals, arguing that he can better raise Dalton
to healthy physical, mental, and social maturity. He requests sole legal custody,
with visitation to Vicki under protective conditions.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App.
P. 6.4.
Because the district court has a firsthand opportunity to hear the
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evidence and view the witnesses, we give weight to its findings of fact, especially
when considering the credibility of witnesses, but we are not bound by them.
Iowa R. App. P. 6.14(6)(g); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa
1992).
III. Discussion
We use the same legal analysis in determining custody of children born to
unmarried parents as that utilized if the children’s parents were married and
divorced. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). Neither parent
bears a higher burden of proving parental fitness under these circumstances. Id.
The primary consideration in any physical care determination is the best
interests of the child. Iowa R. App. P. 6.14(6)(o); In re Marriage of Murphy, 592
N.W.2d 681, 683 (Iowa 1999). In considering which physical care arrangement
is in the child’s best interests, we consider the factors set forth in Iowa Code
section 598.41(3) (2003), as well as the factors identified in In re Marriage of
Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983), and In re Marriage of Winter, 223
N.W.2d 165, 166-67 (Iowa 1974). The critical issue 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 re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa
Ct. App. 1996). In determining which parent serves the child’s best interests, the
objective is to place the child in the environment most likely to bring him to
healthy, physical, mental, and social maturity. Id. at 38; Murphy, 592 N.W.2d at
683.
We find it unnecessary to repeat here the extensive and detailed findings
of fact made by the district court. Suffice it to say that both parents have had
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their problems with the law in the past. It is clear from the record, however, that
both parents have made better choices more recently. The district court found
that “Vicki has ended her relationships with various ‘bad people,’ [and] has been
supportive of Dalton having a good relationship with Chris since Chris began
visitations with Dalton in August 2003, after Chris became serious about having
consistent involvement in Dalton’s life.” Based on the testimony presented at
trial, the district court concluded, “Dalton is a well-behaved, polite, gentle, sweet
child, with no behavior problems who is actively involved in a wide variety of
extracurricular activities.”
The district court found “lacking” Chris’s explanation for his failure to
establish visitation or custodial rights to Dalton until filing the petition for custody
in 2003:
Chris could have pursued, at a minimum, visitation rights with
Dalton, but failed to take action until 2003. This is in spite of the
fact that Chris has long accused Vicki of extremely serious
problems as a parent, including physical abuse, verbal abuse with
profanity, spending late nights out and away from Dalton, exposing
Dalton to drugs and alcohol, exposing Dalton to unsavory people,
and having sex with men in earshot of Dalton. The court notes that
Chris, according to his testimony, at no time called DHS to report
Vicki for neglect or child abuse.
The district court also addressed the credibility of witnesses:
Several witnesses testified about Vicki’s bad temper, violent
behavior, drug use, and drinking problems. Most of the witnesses
who testified for Chris were not credible, however, in the view of the
court, particularly because the witnesses’ testimony sounded
rehearsed and exaggerated.
Much of the testimony was
remarkably similar. Some of the witnesses appeared to have
personal axes to grind against Vicki and did not present themselves
as neutral, factual witnesses. Much of the information presented by
the witnesses against Vicki was several years old.
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We give particular weight to the district court’s credibility assessment.
It is
apparent that the district court carefully reviewed the evidence before it in making
its custody, physical care, and visitation determinations. Upon de novo review,
we find the district court’s findings are supported by the record. We affirm the
district court’s decision.
AFFIRMED.
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