In Re the Marriage of Athy

428 N.W.2d 310, 1988 WL 88829
CourtCourt of Appeals of Iowa
DecidedSeptember 19, 1988
Docket87-1337
StatusPublished
Cited by3 cases

This text of 428 N.W.2d 310 (In Re the Marriage of Athy) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Athy, 428 N.W.2d 310, 1988 WL 88829 (iowactapp 1988).

Opinion

OXBERGER, Chief Judge.

Kenneth Athy appeals the district court’s decision granting custody of his two children, Erin and Annette, to their mother, Ann Athy, upon dissolution of their marriage. Kenneth requests this court grant both him and his wife joint custody of their children and award Kenneth physical custody. Both parties request a clarification of visitation rights. Additionally, Kenneth argues that the economic distribution was inequitable. We affirm the district court’s decision as herein modified.

Review of dissolution cases is de novo. Iowa R.App.P. 4. We give weight to the trial court’s findings of fact, especially where the credibility of witnesses is involved; but we are not bound by them. Iowa R.App.P. 14(f)(7).

Kenneth and Ann Athy were married on June 4, 1972. Two children were born of this marriage, Annette Louise and Erin, ages now ten and eight. Kenneth petitioned the district court for dissolution of this marriage on February 17, 1987. Trial was held on July 1, 1987, and the district court issued its decision regarding this matter on August 5, 1987.

I. JOINT CUSTODY

Kenneth requests the court grant both he and his wife joint custody of their children. In child custody cases, the best interests of the child is the first and governing consideration. Iowa R.App.P. 14(f)(15); Schoonover v. Schoonover, 228 N.W.2d 31, 34 (Iowa 1975). The factors considered in awarding custody are enumerated in section 598.41(3) of the Iowa Code and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), and need not be repeated here. The critical issue in determining the best interests of the child 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 attempting to gain custody in a dissolution proceeding.” In re Marriage of Bowen, 219 N.W.2d 683, 689 (Iowa 1974).

Because our object is to make a custody award “which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents” after dissolution of the marriage, Iowa Code § 598.41(1) (1985), we favor granting joint custody whenever reasonable and in the child’s best interests. When either parent applies for joint custody, we shall consider granting it even when the other parent opposes joint custody. Iowa Code § 598.41(2) (1985). In the event that joint custody is not awarded, it is necessary to cite “clear and convincing evidence ... that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed.” Id. “These changes reflect a legislative preference for maximum parent-child contact in determining reasonable visitation, and require a court denying a request for joint custody to expressly cite clear and convincing evidence supporting its decision.” In re Marriage of Miller, 390 N.W.2d 596, 599 (Iowa 1986).

The trial court cited the following specific evidence as relevant to its determination of joint custody.

1. Kenneth testified the girls wanted to live with him. However the school nurse said Annette requested her mother attend her when she was recently hurt.

*312 2. Kenneth permitted the girls to watch vulgar HBO movies.

3. Kenneth blacked out information put on day camp registration by Ann. The court found this “quite arrogant on the part of the petitioner.”

The trial court made the following conclusions:

The parties are unable to communicate and Kenneth especially would “use these children as pawns in his relationship with the respondent.”

The trial court at the close of the trial orally addressed the parties and said:

I would caution the parties, and especially Mrs. Athy, that it’s obvious that she is extremely bitter. I hope that now that you have had your day in court that you can start restoring some balance between you and the children.

With these facts and events in mind, we must determine whether the trial court erred in awarding sole custody to Ann and in rejecting an award of joint custody. We shall consider the best interests of the minor children by considering the factors stated in section 598.41(3).

Positive factors indicating that joint custody is viable are as follows:

1. Each parent would be a suitable custodian for the children.

2. Both parents cared for the children when they were sick, assisted them in homework, disciplined the children and' shared household maintenance activities. This activity occurred before and after the dissolution proceedings began.

3. Kenneth stayed in the hospital overnight with the children. He provided home care when one child had a tonsillectomy. He puts the children to bed and gives them their bath. He reviewed their school work and attends their school conferences. He makes their breakfast and plans their sack lunches.

4. The geographical location is advantageous to joint custody since both parties are remaining in Stanton.

5. Prior to trial the parties agreed to the distribution of their household goods.

6.The trial court felt the parties could agree to a visitation schedule so it did not make a special schedule.

Neutral factors include the following:

1. Because of the children’s ages, nine and seven at the time of trial, their wishes are not controlling.

2. A professional witness was not consulted by the parties or appointed by the trial court.

The following are negative factors:

1. Ann is opposed to joint custody.

2. Ann opposed counseling for their children at Waubonsie Mental Health Center in Clarinda.

3. The parties lived together during the period between filing the dissolution action and trial. Many instances occurred during this period where each parent interfered with the other’s relationship with the children. Both parties have bitterness toward each other that interferes with their communication with each other.

4. Ann was reluctant to permit Kenneth to have summer visitation with the girls.

5. Ann testified she was not willing at the present time to renew communication between herself and Kenneth. She said the following would be required before she would be willing to reopen communication:

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Related

In Re the Marriage of Holcomb
471 N.W.2d 76 (Court of Appeals of Iowa, 1991)
In Re the Marriage of Lacaeyse
461 N.W.2d 475 (Court of Appeals of Iowa, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
428 N.W.2d 310, 1988 WL 88829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-athy-iowactapp-1988.