Gerard P. Schaben v. Amanda Brewer

Opinion

IN THE COURT OF APPEALS OF IOWA

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No. 25-1339

Filed August 19, 2026

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Gerard P. Schaben, Petitioner–Appellant,

v.

Amanda Brewer, Respondent–Appellee.

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Appeal from the Iowa District Court for Shelby County, The Honorable Eric J. Nelson, Judge.

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AFFIRMED

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Michael J. Winter, Council Bluffs, attorney for appellant.

Krisanne C. Weimer of Weimer Law, PC, Council Bluffs, attorney for appellee.

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Considered without oral argument by Tabor, C.J., and Ahlers and Badding, JJ.

Opinion by Ahlers, J.

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AHLERS, Judge.

Gerard Schaben and Amanda Brewer are the parents of a child born in 2015. The parents have never been married to each other, and they have not lived together for any significant period. The parties and child lived in the Harlan area until the mother moved to Nevada, Iowa. In response to the mother expressing a desire for the child to move with her to Nevada, the father filed a petition for paternity, custody, and parenting time.

The district court granted the parents joint legal custody and placed the child in the mother’s physical care. It also established the father’s child support obligation and a visitation schedule. It also granted the mother the right to claim the child as a dependent on her tax returns each year.

The father appeals. He contends he should have been granted physical care of the child. Alternatively, he argues he should have been given more visitation time in the summer. He also challenges the court’s decision to give the mother the right to claim the child as a dependent each year. The mother asks us to affirm and to order the father to pay her appellate attorney fees.

I. Standard of Review

Petitions to establish visitation and custody rights under chapter 600B (2025) are tried in equity, so our review is de novo. See Iowa Code § 600B.40(1); Iowa R. App. P. 6.907. We apply the same standards to physical-care determinations for unmarried parents under chapter 600B as we do for married parents under chapter 598. See id. § 600B.40(2) (crossreferencing section 598.41). We give weight to the district court’s fact findings and will affirm its decision unless it fails to do substantial equity. Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017).

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II. Analysis

We address each of the father’s claims in turn.

A. Physical Care

In determining which parent is granted physical care of a child, the controlling consideration is the child’s best interest rather than perceived fairness to the parents. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). In making this determination, we consider the factors listed in Iowa Code section 598.41(3) in addition to other relevant factors. Id. at 696. Our objective is to “place the child[] in the environment most likely to bring them to health, both physically and mentally, and to social maturity.” Id. at 695.

The father claims he should be granted physical care because (1) he is the more suitable parent, (2) the mother will not support his relationship with the child, (3) the child prefers to live with the father, and (4) the mother’s self-interested reasons for moving should weigh against her for purposes of making a physical-care determination. See Iowa Code § 598.41(3)(a), (e), (f ).

The father argues he is the more suitable parent to have physical care because he has extended family in the Harlan area; he coaches the child in baseball; they are both interested in outdoor activities like hunting, fishing, and farming; and they enjoy spending time together. See id. at 598.41(3)(a). While we acknowledge all these points highlighted1 by the father, following our de novo review, we agree with these findings by the district court:

1 Speaking of highlights, we note that the copy of the district court decree that the father attached to comply with Iowa Rule of Appellate Procedure 6.903(2)(b) included yellow highlighting that does not appear on the court file copy of the decree. Presumably the highlights were added by the father or his attorney. As a teaching point, we believe the

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It is significant that [the mother] has been the primary caregiver for [the child] throughout his lifetime. He has always resided within her home. Although there were times when [the father] stayed overnight with both of them, [the child] has never been in his father’s full-time care. Since their breakup, [the father] has only had [the child] in his care for short periods of time such as overnights or weekends, but never on a long-term basis. [The mother] has always taken on the responsibility of handling the day-to-day care and responsibilities that come with raising a child. She schedules and takes [the child] to most of his medical appointments. She ensures he is fed and clothed daily. She has actively attempted to assist him in obtaining medical treatment and services to assist [the child] with his [medical diagnoses]. She has historically been the parent who interacts with [the child]’s teachers and school on an ongoing basis.

. . . To be sure, [the father] is an involved father who has had [the child] in his care plenty, but it is clear that [the mother] is more suited going forward to minister more effectively to the routine daily needs of [the child].

Like the district court, we find the mother is better suited to have the child in her physical care.

We also reject the father’s claim that the mother does not support his relationship with the child. We agree with the district court’s findings that the mother has generally supported the father’s involvement in the child’s life, and while the mother made a few derogatory remarks about the father to the father when the child wasn’t present, the mother does not demean the father to the child. In contrast, the father has occasionally spoken negatively to the child about his mother, and the father has shown a tendency to put the child in the middle of the parents’ disputes. In the end, the court concluded that the father’s negative feelings toward the mother have prevented him from putting the child’s interests first, so the court determined the mother

spirit of rule 6.903(2)(b) necessitates attaching a clean, unaltered copy of the decision being appealed.

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was more likely to support the child’s relationship with the father than he was to support the mother’s relationship with the child. We give the district court’s findings in this regard great weight and reject the father’s arguments accordingly. See Iowa R. App. P. 6.904(3)(g); In re Marriage of Johanns, No. 24-1900, 2025 WL 1824754, at *3 (Iowa Ct. App. July 2, 2025) (relying on the trial court’s fact findings).

The father’s next argument—that the district court should have given more weight to the child’s preference to stay with him—also fails. First, the only evidence of the child’s preference is the father’s self-serving testimony that the child wants the father to have physical care. None of the father’s other witnesses testified that the child preferred to live with the father. So, the evidence supporting the father’s argument is weak. 2 Second, while a child’s preference is a factor to consider, we also consider the child’s age and maturity. See Iowa Code § 598.41(3)(f ). Here, the child was only nine years old at the time of trial. See Herron v. Herron, 141 N.W.2d 562, 566 (Iowa 1966) (“The wishes of a seven or eight-year-old or even a ten-year-old should be given little if any weight since they are not of an age to exercise discretion in choosing a custodian.”). And we agree with the district court’s assessment that “[t]here’s nothing that the court’s heard that would indicate that [the child] is highly mature for his age or anything to that nature.” Given the weak evidence of preference and the lack of evidence that the child is highly mature for his age, we reject the father’s argument that the child’s preference should have been given more weight.

We also reject the father’s claim that the mother was failing to act in the child’s best interests by moving. The mother had valid reasons for

2 The father does not challenge the district court’s decision to not allow the child to testify, so we do not address that issue.

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moving. The move allowed her to significantly increase her income, which will accrue to the child’s benefit. See In re Marriage of Thielges, 623 N.W.2d 232, 238 (Iowa Ct. App. 2000) (citing valid economic reasons for a custodial parent’s relocation). The move also resulted in increased access to medical and educational support for the child—an important consideration given the child’s medical diagnoses. Moreover, no evidence suggests the move was intended to undermine the father’s visitation or relationship with the child. See In re Marriage of Hoffman, 867 N.W.2d 26, 33 (Iowa 2025) (finding a lack of evidence of intent to undermine the other parent’s relationship with the child when a parent moves is a valid consideration when deciding physical care). As much as the move to Nevada was a disruption to the child’s life, we find it less disruptive than the father’s proposed solution, which is to uproot the child from the daily care and routine the mother has provided for the child’s entire life. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998) (placing greater weight on the stability in the relationship with the parent with physical care over stability of the child’s physical setting). So, we reject the father’s argument.

The factor that weighs most heavily in favor of granting the mother physical care is her role as the primary caregiver before these proceedings. See Iowa Code § 598.41(3)(d); see also Hansen, 733 N.W.2d at 696 (“Stability and continuity factors tend to favor a spouse who, prior to divorce, was primarily responsible for physical care.”). The child has remained in her full- time care. She sees to his daily needs. She schedules and takes him to most of his doctor’s appointments, and she has historically communicated with his school and teachers.

Upon our de novo review, for the reasons stated above, we conclude the child’s best interests are served by granting the mother physical care.

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Granting the mother physical care is most likely to ensure the child is physically and mentally healthy and socially mature. See Hansen, 733 N.W.2d at 695. Therefore, we affirm the district court’s determination on this issue.

B. Visitation

The father argues that if we don’t grant him physical care, then we should increase his summer visitation by essentially giving him the entire summer. Under his proposed plan, the father would have the child throughout the summer, with the mother having the child on alternating weekends.

When one parent is given physical care of a child, the court must “assure the child the opportunity for the maximum continuing physical and emotional contact with both parents.” Iowa Code § 598.41(1)(a). As always, the visitation schedule must serve the child’s best interests. In re Marriage of Young, No. 25-0399, 2026 WL 221585, at *6 (Iowa Ct. App. Jan. 28, 2026).

The father argues he should have visitation for the entire summer because he coaches the child’s baseball team and, as a farmer, he works less in the summer. We are not persuaded that the father’s desire to participate in coaching the child’s baseball team warrants granting the father visitation for the entire summer under the circumstances of this case. The decree’s visitation schedule grants the father visitation on alternating weekends and holidays, all of spring break, and two uninterrupted weeks in both July and August. Under the circumstances, this schedule is fair and provides the child with the maximum opportunity to maintain physical and emotional contact with both parents. We therefore affirm the visitation schedule set by the district court.

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C. Claiming the Child as a Dependent

The father also takes issue with the court granting the mother the right to claim the child as a dependent each year on her tax returns. He claims he should get the right to claim the child every year or at least every other year. While the mother claims the father failed to preserve error on this issue, we find the father preserved error by raising the issue in a motion to reconsider, enlarge or amend under Iowa Rule of Civil Procedure 1.904(2). See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

The father’s argument conflicts with the general rule, which is that the parent with physical care of a child is entitled to claim the child as a dependent. See Iowa Ct. R. 9.6(5);3 In re Marriage of Okland, 699 N.W.2d 260, 269 (Iowa 2005). But the court can award the exemption to the noncustodial parent “to achieve an equitable resolution of the economic issues.” See Okland, 699 N.W.2d at 269 (citation omitted). Such an award may be appropriate when it would “free up more money for the dependent’s care.” Id. (citation omitted). But the father points to no evidence that granting him the right to claim the child as a dependent would free up more money for the child. See id. As such, we decline to stray from the general rule, and we affirm the district court’s decision to grant the mother the right to claim the child as a dependent.

III. Appellate Fees and Costs

The mother requests that we order the father to pay her appellate attorney fees of $7,500. The request is supported by affidavit.

3 This rule has been amended since the father filed his petition. We cite to the rule in effect at the time his petition was filed, though we note the amendment did not substantively change the rule.

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We have discretion to award fees to the prevailing party in this action.

See Iowa Code § 600B.26. In determining whether to award appellate fees, we consider the needs of the party requesting fees, the ability of the other party to pay, and whether the requesting party was obligated to defend the decision on appeal. Benson v. Sullens, No. 24-0376, 2024 WL 4619745, at *3 (Iowa Ct. App. Oct. 30, 2024). After weighing these considerations, we order the father to pay the mother $3,750 in appellate attorney fees.

IV. Conclusion

Having rejected each of the father’s challenges, we affirm the district court’s ruling. We order the father to pay the mother $3,750 in appellate attorney fees.

AFFIRMED.