A Primer on Iowa Custody Laws
All custody orders contain a physical and legal custody component. The majority of custody disputes involve the division of legal custody, which is typically uncontested.
Physical Custody
Physical custody refers to the living arrangements for the child. The law specifically states that an award of physical care places primary responsibility for the care of the child with one party. The court does not have the option to grant shared physical care in an initial custody determination, although parties may agree to share physical care in an uncontested, permanent order for custody.
Legal Custody
The most contentious issues involving custody typically relate to legal custody. Legal custody refers to the authority to make decisions regarding the child’s upbringing, including school, religious and health care decisions. In the majority of contested cases, the court will award joint legal custody where both parties will make the decisions together, although the court may award sole legal custody. Joint legal custody results in the best interests of the child, by encouraging frequent and continuing contact with both parents.
Joint legal custody is the default form of custody in Iowa, although sole legal custody is possible. Sole legal custody may be awarded if the court decides that joint legal custody is not in the child’s best interests. Courts look for clear evidence showing that the parent should not make the decisions for the child, due to repeated discord or drug and alcohol misuse by the parent.
The Court’s Analysis
When determining the best interests of the child, the court must consider a number of relevant factors , including:
• Whether joint legal custody would cause such a high level of conflict that it would be detrimental to the child
• Where the child has an established residence and the parents reside in separate residences
• The times the child is in school and other activities when parents work outside the home
• The child’s physical, mental and emotional condition and specific needs
• The parents’ ability to communicate and cooperate
• The child’s relationship to extended family members
• Whether the parents’ prior co-parenting experience was positive or negative
• Whether both parents agree on joint legal custody
• The nature and level of each parent’s needs for financial independence
• Whether the past and potential future performance of the parents show they are likely to support the child
• Each parent’s history of domestic abuse
• Preferential custodial arrangements made by a parent
• Whether there is a distance between the parents’ homes
• Each parent’s place of employment
• Each parent’s ability to offer a stable, consistent home environment
• The relationship between the child and each parent
• The nature of the parent-child attachment
• The child’s preferences to spend more time with one parent if the child has sufficient maturity to represent the child’s wishes
• Any other additional factors
The Court’s Decision
The court will award joint legal custody in the vast majority of cases. The court explicitly notes that this process challenges the traditional judicial fact-finding approach. In this approach, the court simply focuses on identifying relevant facts and applying the law to the facts to resolve the disputed issue. The court encourages courts to make decisions about legal custody and physical care with the parent who is knowledgeable about the children’s needs.
How Iowa Courts Decide Child Custody
In Iowa, the family court is ultimately tasked with determining custody in a child-in-need-of-assistance (CINA) proceeding. Even if the child is not a CINA, and is instead involved in a private custody dispute, the same standards are applied in regards to the welfare of the child. Further, if a child is not a CINA, or the parties wish for their attorney to represent them, the child will be served by a Guardian ad Litem (GAL). The role of the GAL is to investigate circumstances surrounding the child and testify as to what is in the child’s best interests.
Iowa Code § 598.41(3)(a) commences the custody analysis in Chapter 598. The statute states: "If there is a request for joint legal custody . . . by either parent, the court shall consider all of the following factors": (1) The nature of each parent’s relationship with the child prior to and after the separation. (2) Each parent’s agreement to cooperate in raising the child after the parents’ separation. (3) Whether a history of domestic abuse exists. (4) A finding that a party has knowingly engaged in an activity listed in section 598.41, subsection 3, paragraph "g". (5) "[T]he ability of the parents to cooperate in jointly raising the child, including making provisions for the safety of the child while physically in the presence of the other parent", along with any "risk factors", including the parent’s inability to put the needs of the child ahead of the parents’ own needs, a lack of conflict resolution skills, abusive parental inappropriateness, and how well the parents communicate with each other and the child. (6) Evidence that the child has frequent and meaningful contact with both parents. (7) The geographic residence of each parent and the ability and willingness of the parent(s) to care for the child. (8) The age of the child and the child’s developmental needs. (9) [H]ow close the child’s relationships will be with extended family members as a result of the award of joint legal custody. (10) [A]ny other factors having a reasonable relation to a child’s physical, mental, and emotional needs in light of the characteristics of each parent and the child.
The court then examines whether joint legal custody is in the best interests of the child, if the same factors are met under Iowa Code § 598.41(3)(b). The court then makes findings of fact as to the custodial care of the child, pursuant to Iowa Code § 598.41(3)(c). Factors include: (1) The willingness of each parent to allow the child frequent and continuing contact with the other parent. (2) The degree of conflict between the parents. (3) The parents’ ability to co-parent. (4) The ability of the parents to agree on what is best for the child. (5) The past and present ability of each parent to care for and meet the needs of the child, including the stability of each parent’s home environment. (6) The preferences of the child, with increasing weight placed upon the wishes of the child as the child grows older. (7) The interaction and relationship of the child with each parent. (8) The interaction and relationship of the child with the child’s siblings and extended family members. (9) The reasonable extent to which the child has a integrated the parents’ extended family into the child’s life. (10) The child’s adjustment to the home, community, and school. (11) The method of child rearing of the parents. (12) The employment responsibilities of the parents. (13) The economic resources of the parents. (14) The conscious and subconscious effect upon the child of the parents’ activities. (15) The educational opportunities available to the child. (16) Their physical care, as compared with the other parents. (17) The feelings and wishes of the child. (18) The absence or presence of abuse, unless it is a physical, sexual, or emotional abuse which has been directed against the child. (19) The rationale for the award of joint legal custody. (20) Any other relevant factor. (21) The interaction and relationship of the child with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest. (22) The suitability of the proposed residence of the other parent. (23) The ability of the proposed custodial parent to care for the child. (24) The stability of the proposed custodial home. (25) The developmental needs of the child and the capacity of the parents to meet those needs.
Joint vs. Sole Custody in Iowa
In the state of Iowa, parents often end up having joint legal and physical custody of their children following a divorce. This term means that both parents share the responsibility of raising the child and make all major decisions together, regardless of where the child spends most of his or her time. A couple going through a divorce can negotiate all the details of joint custody and have it approved by the court. A judge would then ensure that a favorable agreement is reached.
However, there are circumstances when a judge might choose to grant one parent sole legal and/or physical custody of children. This is often done when the court believes it to be in the best interests of the child. In these circumstances, the non-custodial parent will not have as much influence over child-rearing decisions and visitation rights will probably be reduced. Single parents in this situation may benefit from having greater control over their children, but the bond with their children could suffer if they are not allowed to spend enough time with them.
A judge will most likely award sole custody to one parent if the other parent is viewed as unfit to be around the children. This can be the result of any number of issues, such as:
Custody of minor children is often one of the most hotly contested elements of any divorce. It is important to have an experienced family lawyer to represent you in the negotiations with your spouse and to draft language that protects your interests in the final settlement agreement.
Changing Iowa Custody Arrangements
Modification of Custody Orders: A Thorough Guide for Parents in Iowa
Iowa allows for the modification of child custody orders under particular circumstances. A parent seeking to change the existing child custody arrangement must establish a substantial change of circumstances, which has occurred since the initial order was issued or since a previous modification. The proposed modification must then be in the best interests of the child or children involved.
In determining whether a substantial change in circumstances has taken place, the court considers three primary criteria. First, the changed circumstances must have had a significant impact on the child. Second, the changed circumstances must have occurred involuntarily. Third, the changed circumstances must not have been previously contemplated by the court when the original custody order or modification was issued.
However, the fact that a substantial change in circumstances exists does not guarantee that a modification will be granted. Even if the court determines the such a change exists, the proposed modification still must be in the best interests of the child or children. Factors that can affect the outcome of the custody order modification include whether the present custodial parent denies or interferes with the child’s access to the other parent; whether the child or children involved have become integrated into the family unit of a third party; and the length of time since the last modification has taken place.
The Importance of Mediation in an Iowa Child Custody Dispute
After your initial consultation, your custody lawyer should focus on finding a way to resolve things without filing a custody lawsuit. The reasons are simple. First and foremost, the goal is to keep your family out of court for as long as possible. Your custody attorney understands this. Sometimes it is necessary to file a custody lawsuit to show the Court that you are serious about going to court if necessary so the other side will work with you. In those cases, you file the lawsuit and immediately make a request for Temporary Orders. Temporary Orders resolve the most pressing issues while you work out the remaining issues or go to trial on the remaining issues. That said, the number one best thing to do in a custody case is to work it out without filing a lawsuit. Mediating is generally required in all Iowa custody cases. This is a huge plus for most parents. The mediator is a trained third-party mediator who is a lawyer. The goal is simply solve the problem without having to go to trial. Usually, it works. You all work together and reach a resolution. You leave signed paperwork confirming what you worked out. In the event you cannot come to an agreement, you still had the time out from your Extremely Emotional Situation to breathe and find a focus back to your child. When you go to court for Temporary Orders, the mediator often knows the Judge and can help you understand that Judge’s tendencies. This helps to level you out so that when you go to court, you are thinking more clearly. Mediators can also help you understand how likely you are to get what you are asking for at trial. Often, mediators are willing to have joint sessions with all parties present. Other times, they will meet with only one party at a time without the other party knowing what is discussed. This can lead to a compromised situation for both parties that is mutually acceptable. The mediator helps to protect all parties in the event that mediation fails . Sometimes parents do not have the stamina to go to court. However, they are in the majority of cases obliged to do so. It is also helpful for the mediator to be there to advise because all too often the parents come out of mediation with an Agreement that the mediator signs primarily as a witness. Often this is not actually the parents’ desires. They were upset when they left the mediator’s office because they had no choice. Their lawyers failed to prepare them for the point in time when the mediator would give them the best advice that was to simply NOT AGREE. Simple facts are simple facts. There’s nothing that can change them. In fact, sometimes that’s the information that a parent needs to help her or him determine after meeting with the mediator whether to go to court or not. It also prevents the unnecessary filing of a custody action. The bottom line is that mediation is usually a good vehicle to resolve all issues. There are limitations to the use of the mediator and the mediator’s style. In general, the mediator will refer you to another person if the situation appears to be hopeless or outside his/her scope. Sometimes mediation fails. It is important to have a lawyer who knows when mediation will fail – otherwise, you simply waste your time. Again, since the judge wants to see if the parents can work things out even in a tiny little closet, judges require mediation before allowing a matter to go to trial. You’ll work with the mediator to provide him/her some information before you meet in order to make the mediation session more effective. You’ll also work to get the information you need about the other parent ahead of time so you have a better chance of success during mediation. Judges do want to hear from the mediator when a parenting time schedule fails to work. That is often the best evidence of a failed mediation. All the more reason to have a lawyer who knows HOW to get you to succeed at mediation. Ideally, without the unnecessary expense of a trial.
Iowa Child Custody Enforcement and Parental Rights
The rights of parents under Iowa custody laws are well defined. The Iowa legislature and the court system are primarily concerned with the best interests of the child. However, parents still have a number of rights under Iowa law, which include the following:
Whether you have physical custody or joint physical custody of a child, you are entitled to a meaningful relationship with your child. Parents have the right to spend quality time with their kids as their schedules allow.
If you have sole legal custody of your child, you are entitled to all rights related to the child’s wellbeing. Decision-making is entirely in your hands until the child becomes of age.
If you have joint legal custody of your child, both parents share the obligation to make mutually decisive decisions for the child.
Iowa law allows parents to petition for enforcement of an existing order for possession of a child or a child’s return. The petition can be filed by either or both parents.
A. You must file the petition with the district court in the jurisdiction where the child resides. B. As the petitioner, you must establish a prima facie case that the other parent is in fault of the violation. C. If the petition is granted, several things can happen: You have specific rights as a parent, but what happens when the other parent does not live up to the judgment or decree? If the other parent is in clear violation of the custody terms or is creating a significant burden on your visitation rights, several enforcement options are available:
If the other parent is in outright and serious violation of the terms below are the guidance that you are allowed to follow: Depending on the circumstances, the court may also impose other reasonable sanctions.
Domestic Violence and Iowa Child Custody
In cases where there are allegations or evidence of domestic violence, the court’s primary concern is the safety of the child and the parent. In such cases, there are certain provisions in the law that either apply to, or provide protections for, the child and the abused spouse or parent. For example, Iowa law provides that the court may:
In deciding the custody or visitation rights to be awarded a parent who has been convicted of a crime against a child under section 707.2, 707.4, 709.3, or 728.12, or poses a serious threat of harm to the child or other household member, the court shall consider how the parent has demonstrated responsibility to the child and the presence or potential for the existence of domestic abuse, as defined in section 236.2, of the other parent. The court may consider the factors in section 598.41(3) and (4), or any other factors deemed relevant by the court.
Domestic abuse is grounds for immediate termination of visitation rights. If someone goes to prison because of a conviction of physical abuse to a spouse, it’s hard to imagine that they will be granted any visitation or contact with the children.
Iowa law provides additional protections to children of divorcing or separating parents. A "temporary assistance for needy families" (TANF) grant is automatic grounds for restriction of contact with a non-custodial parent, even based on allegations of domestic violence by the non-custodial parent. In Iowa Code Section 598.41E, the law states:
A court shall not approve or allow overnight visitation rights to a parent who is receiving assistance under chapter 239B, chapter 239A, or chapter 261 or who is a child support recovery unit employee, if the court has determined at the time of the decree or afterwards that the other parent has committed domestic abuse against the custodian of the child or against the child.
In addition, the law provides that if the child is on welfare and the parent is convicted of an offense against the other parent, the other parent is prohibited from having contact with the child.
Dispelling Myths About Iowa Custody Laws
When it comes to child custody in Iowa, there’s a lot of misinformation floating around. Many parents are operating under the assumption that simply isn’t true. Here are some common misunderstandings about Iowa custody laws – debunked.
Myth 1: If Dad is the breadwinner, he automatically gets custody. Just because someone is the primary economic provider in the family doesn’t mean that they’ll get custody of the kids. While that has been a stereotype in the past, things have changed. Iowa courts decide custody determinations based on the best interests of the child. In most cases, this means maintaining close contact with both parents when possible. Often, this means that noncustodial parents are required to pay child support, but even that amount is not cut and dry. Child support amounts are determined by countless factors, including the needs of the child. Parents have a chance to argue over the amount and may negotiate to reduce the amount paid or increase the amount paid to reflect their lifestyle.
Myth 2: Child support payments can be used as leverage in a custody dispute. As mentioned above , child support is determined separately from custody. Child support is based on a complex formula that takes into account the income of both parents, the amount of time each parent spends with the child, and the expenses for which they’re responsible. Child support is not dependent on the quality of that custodial relationship. Parents should not make decisions regarding custody and visitation based on the potential child support they would receive (or deny). All of these components are evaluated based on what is best for the child.
Myth 3: Whatever the child says, goes. As children age, they gain more say in deciding where they will reside. The specific age at which they are given that level of authority varies from state to state. However, in the eyes of the court, a child’s opinion is not the final factor in the consideration of custody. Courts can and often do give different weight to the opinions of adolescents and younger children. That being said, Illinois courts will determine if the child is mature enough to speak on the matter of custody and then decide if the child’s choice is in their best interest.