Upon the Petition of NATHAN ALLISON LANGE, Petitioner-Appellant, And Concerning CYNTHIA MICHAEL WALLACE, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-582 / 06-0162
Filed February 14, 2007
Upon the Petition of
NATHAN ALLISON LANGE,
Petitioner-Appellant,
And Concerning
CYNTHIA MICHAEL WALLACE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Adair County, Paul R. Huscher,
Judge.
Nathan Lange appeals the physical care provisions of the district court’s
ruling. AFFIRMED.
David L. Jungmann of David L. Jungmann, P.C., Greenfield, for appellant.
James W. Ries of Howe Olesen Ries, P.L.C., Greenfield, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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VAITHESWARAN, J.
Nathan Lange and Cynthia Wallace are the unmarried parents of Brooks,
born in 2004. The district court ordered the parents to exercise joint physical
care of Brooks. On appeal, Lange maintains the court should have awarded him
physical care. He cites several factors: (A) Wallace’s use of methamphetamine
and marijuana and her exposure of Brooks to these substances; (B) Wallace’s
restriction of visitation; (C) Wallace’s failure to provide him with “relevant
information” and the opportunity to care for Brooks when she was unable to do
so; (D) “[i]ndications of possible physical abuse and neglect” of the child; and (E)
Wallace’s “failure to provide appropriate care and attention to her children.”
I. Analysis
We begin our analysis by noting that the criteria governing physical care
determinations are the same whether the parents are dissolving their marriage or
have never been married to each other. Jacobson v. Gradin, 490 N.W.2d 79, 80
(Iowa Ct. App. 1992). The determinative factor is Brooks’s best interests. See In
re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We turn to the factors
cited by Lange, reviewing the record de novo.
A. Wallace’s Drug Use.
Lange and Wallace dated for several months before Brooks was born.
Lange broke off the relationship after learning that Wallace was using illegal
drugs.
At
trial,
Wallace
confirmed
that
she
used
marijuana
and
methamphetamine before and after the child was born. When someone reported
the drug activity to authorities, Wallace voluntarily placed herself in a residential
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treatment facility. On completion of that program, she registered for outpatient
treatment in her hometown.
Lange acknowledges that Wallace was “drug-free” for almost seven
months, but contends “[t]here is always the possibility she will relapse.” The
district court addressed this concern, stating:
There is no doubt that Cynthia’s use of illegal drugs is an important
factor in deciding custody of Brooks. Exposure to such drugs not
only has a negative effect on a child’s physical health, but the
parent’s ability to parent the child in all other areas is also
hampered. Past usage of drugs however does not end the inquiry.
If it did, the goal in a majority of our child in need of assistance
cases would not be to reunite the family, but would be to terminate
parental rights. It is necessary to consider the current condition
and attitudes of the parents.
The court continued,
Cynthia voluntarily sought in-patient treatment for her addiction.
She successfully completed the in-patient treatment program and
has willingly pursued aftercare. She ensured that Brooks was well
taken care of during her treatment, even providing the foster
parents with schedules in order to cause as little disruption of
Brooks’ life as possible. While no one can assure that she will not
relapse, her desire to remain drug-free seems sincere. Those who
have been around her, including her ex-husband, have noticed the
positive changes she has made. If a relapse should occur, her past
actions indicate that Cynthia would be willing to do what is
necessary to protect Brooks. Cynthia’s past drug usage cannot be
condoned, but her sincere efforts to address the problem are
laudable and should be commended.
We agree with this assessment. Wallace admitted her drug use at trial.
She testified “[i]t was very wrong for me to use . . . . That’s why I’m changing my
life now.” While she did not foreclose the possibility of a relapse, she stated she
was attempting to recover and recovery was a daily process.
The district court had the opportunity to assess Wallace’s credibility. The
court concluded her efforts at sobriety were “sincere.” We give considerable
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weight to the court’s judgment, given its unique ability to hear and observe the
parties first-hand. Ford, 563 N.W.2d at 631.
B. Restriction of Visitation.
Lange contends Wallace denied him visitation with his son. The record
reveals that Lange enjoyed visitation with Brooks during the early months of his
life, sometimes seeing him three times a month, and other times on a more
irregular basis. Later, Lange began visiting his son every other Wednesday and
every other Saturday.
When Wallace learned that Lange was dating another woman, she
restricted visitation for approximately two and one half months.
During this
period, Wallace allowed Lange to visit Brooks, but only at her home. Lange
testified he felt uncomfortable with this arrangement and exercised the option
infrequently. In time, Wallace relented and removed this restriction.
Lange also described an occasion when Wallace denied him visitation
because he was five minutes late to pick up Brooks. While we do not condone
these actions, we note they were short-lived. When Brooks was approximately
sixteen months old, the district court entered a temporary order fixing an
alternate-week joint physical care arrangement. At this point, visitation issues
disappeared. We conclude Wallace’s temporary restriction of visitation is not
grounds for reversal of the joint physical care arrangement ordered by the district
court.
C. Failure to Exchange Relevant Information.
Brooks was born without fully formed legs and hands and with holes in his
heart. While Cynthia was involved with in-patient treatment, Lange and his new
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girlfriend, Betsy, had Brooks fitted with a foot brace, which he was required to
wear most of his waking hours. Lange contends “Cynthia remains uncooperative
with [him] on important issues, such as the use of Brooks’s brace and his routine
medical care.”
The record reflects that neither parent communicated effectively about the
brace.
Lange did not inform Wallace of his intent to obtain the brace.
He
acknowledged that Wallace “was upset because she didn’t have any say in it.”
Once the brace arrived, Lange said he told Wallace how it worked. Wallace
countered that she was given written instructions, but not the name or contact
information of the person who prescribed it. While she essentially conceded that
she did not consistently use the brace, the record suggests that this omission
was unintentional.
Specifically, Betsy corroborated Wallace’s testimony that
Wallace misunderstood the number of hours it was to remain on Brooks.
Lange also contends that Wallace had Brooks placed in foster care before
she entered treatment, rather than giving him an opportunity to care for him.
Although there is evidence that Brooks was briefly in foster care before Wallace
began in-patient treatment, there is no indication that Wallace intentionally
deprived Lange of contact with Brooks during this period. Wallace entered a
facility that allowed Brooks to stay with her. After she began the program, Lange
testified he regularly visited Brooks at the facility, even though it required a
round-trip drive of five hours.
We conclude both parents shared responsibility for miscommunication
about Brooks’s health needs, including the brace, and about other matters.
However, their level of communication was sufficient to effectively implement the
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temporary joint physical care arrangement for seven months preceding trial. As
neither parent presented evidence that the arrangement proved unworkable, we
conclude this factor does not militate in favor of reversal.
D. Abuse and Neglect.
Lange next cites to “indications of possible physical abuse and neglect” by
Wallace. This ground relates to Wallace’s drug use around Brooks. We have
addressed this factor in Part A above. We reaffirm the district court’s findings on
this factor, as they are fully supported by the record.
E. Wallace’s Care of Brooks.
Lange suggests that he can better care for Brooks than can Wallace. The
district court addressed this factor, noting that Lange could indeed provide more
material benefits, but material possessions were not enough to raise a child. The
court noted that both parents loved the child and had proven themselves to be
adequate caretakers who communicated with each other effectively, when
necessary.
On our de novo review of the record, we are not sanguine about Wallace’s
ability to maintain a joint caretaking role. As she conceded, she was recovering
from drug addiction. In addition, there was evidence that Brooks’s half-brother,
who was in Wallace’s care part of the time, missed significant amounts of school
while in her care. There was also some evidence that Wallace’s home was less
clean than Lange’s and Wallace provided less structure for Brooks than did
Lange. Despite these concerns, we acknowledge countervailing considerations
such as Brooks’s relationship with his half-brother, and, most importantly, the fact
that Wallace made the joint physical care arrangement work for several months
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prior to trial. The district court thoughtfully weighed these considerations and
opted for joint physical care. On this record, the court’s decision was equitable.
II. Disposition
We affirm the district court’s ruling on Lange’s petition to establish
custody, visitation, and support.
AFFIRMED.
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