STEPHANIE A. FOGELMAN, Petitioner-Appellee, vs. BRADLEY G. ANDERSEN, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-991 / 06-1093
Filed January 31, 2007
STEPHANIE A. FOGELMAN,
Petitioner-Appellee,
vs.
BRADLEY G. ANDERSEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.
Larson, Judge.
Bradley G. Andersen appeals from a district court order that placed
physical care of the parties’ son with Stephanie A. Fogelman. AFFIRMED.
Michael J. Winter, Council Bluffs, for appellant.
Norman L. Springer Jr. of McGinn, McGinn, Jennings & Springer, Council
Bluffs, for appellee.
Heard by Zimmer, P.J., and Miller and Baker, JJ.
2
ZIMMER, P.J.
Bradley G. Andersen appeals from a district court order that placed
physical care of the parties’ son with Stephanie A. Fogelman. He contends the
court erred by failing to award the parties joint physical care. We affirm the
district court.
I.
Background Facts and Proceedings
Bradley met Stephanie in May or June of 2003.
Stephanie became
pregnant, and the couple began residing together in October 2004. The parties
have never been married to each other.
Their only child, Gavin James
Andersen, was born in January 2005. Stephanie and Gavin moved out of the
home they shared with Bradley in July 2005.
In October 2005 Stephanie filed a petition to establish custody, visitation,
and child support.
The following month the court granted the parties joint
temporary physical care of Gavin. The district court heard the child custody
action in May 2006. At the time of trial, Bradley was unemployed and Stephanie
was a full-time student at Iowa Western Community College.
On June 1 the court granted the parties joint legal custody and placed
physical care of Gavin with Stephanie.
The court also established a liberal
visitation schedule for Bradley and ordered him to pay child support. Bradley
filed a motion pursuant to Iowa Rule of Civil Procedure 1.904 requesting that the
court modify or amend its decree.
The court ruled on Bradley’s motion on
June 13, 2006. It modified its ruling to provide that Bradley would have overnight
visitation each week from 6 p.m. on Wednesday until 6 p.m. on Thursday.
3
Bradley now appeals. He contends the court should have awarded joint
physical care, and argues he and Stephanie should exchange physical care of
Gavin on a weekly basis.
II.
Scope and Standard of Review
We review a district court’s ruling on child custody de novo. Iowa R. App.
P. 6.4; In re Marriage of Barry, 588 N.W.2d 711, 712 (Iowa Ct. App. 1998).
Although we are not bound by the district court's factual findings, we give them
weight, especially when assessing the credibility of witnesses. Iowa R. App. P.
6.14(6)(g).
III.
Physical Care
The issue of joint physical care is addressed in the following language of
Iowa Code section 598.41(5) (Supp. 2005):
If joint legal custody is awarded to both parents, the court may
award joint physical care to both joint custodial parents upon the
request of either parent. If the court denies the request for joint
physical care, the determination shall be accompanied by specific
findings of fact and conclusions of law that the awarding of joint
physical care is not in the best interest of the child.
As we have stated before, this language is no more than a proclamation by the
legislature that joint physical care, once strongly disfavored, is a viable option,
provided it is in the children’s best interests and the parents are able to
cooperate and communicate with one another.
In re Marriage of Ellis, 705
N.W.2d 96, 99 (Iowa Ct. App. 2005).
When we address the issue of physical care, our primary consideration is
the best interests of the child. In re Marriage of Murphy, 592 N.W.2d 681, 683
(Iowa 1999).
When we consider which physical care arrangement is in the
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child’s best interests, we consider the factors set forth in Iowa Code section
598.41(3), as well as the factors identified in In re Marriage of Winter, 223
N.W.2d 165, 166-67 (Iowa 1974). 1 The criteria for determining custody are the
same regardless of whether the parents have never been married or have
dissolved their marriage. Hodson v. Moore, 464 N.W.2d 699, 700 (Iowa Ct. App.
1990).
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).
Our
primary objective is to place the child in the environment most likely to bring him
or her to healthy physical, mental, and social maturity. In re Marriage of Kunkel,
555 N.W.2d 250, 253 (Iowa Ct. App. 1996).
1
We must also consider the
We consider the following factors from Winter, 223 N.W.2d at 166-67 when making
physical care determinations:
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.
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.
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willingness of each party to allow the child access to the other party. Id. With the
foregoing principles in mind, we now address the district court’s decision.
The district court gave serious consideration to Bradley’s request for joint
physical care, but concluded joint physical care would not be workable in this
case. The court noted the parties “have clearly demonstrated by their past and
current actions that they are not able to cooperate and communicate with each
other in a reasonable and positive manner.”
Upon our de novo review of the record, we find no reason to disagree with
the district court's decision. The record reflects the parties have experienced
conflict and disagreement regarding a variety of issues pertaining to their son.
Bradley and Stephanie have been unable to agree on issues relating to Gavin’s
medical care, his food and nutrition, and how their son should be clothed. They
have differences of opinion regarding their son’s daily routine. The parents have
also experienced some conflict regarding the amount of contact Gavin should
have with his grandparents. Finally, the record reveals the parties have not been
able to exchange care of their son without conflict. On the evening prior to their
custody hearing, a physical exchange of care resulted in a physical confrontation,
and the police were called.
Neither Bradley nor Stephanie is a perfect parent. However, they are both
loving parents who are able to meet their son’s needs. Nevertheless, like the
district court, we conclude a joint physical care arrangement is not in Gavin’s
best interests in view of his parents’ difficulties in cooperating and communicating
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with one another. 2 In reaching this conclusion, we recognize the court had the
parties before it, was able to observe their demeanor, and was in a better
position to evaluate them as caregivers than we are. See In re Marriage of
Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993). Because we agree with the
district court’s decision, we affirm.
AFFIRMED.
2
The record supports the conclusion that the parties’ difficulty in communicating is
exacerbated by the lack of respect Bradley has shown for Stephanie in his comments to
her and his communication with others.
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