In Re the Marriage of Barry

588 N.W.2d 711, 1998 Iowa App. LEXIS 76, 1998 WL 966140
Court of Appeals of Iowa·Decided November 30, 1998·No. 98-157·Published·Cited by 9 cases

Opinion

VOGEL, J.

Michele Barry appeals the custodial provisions of the parties’ dissolution decree. We affirm.

Background facts. Kevin Chauncey Barry (Chauncey) and Michele Barry were married in 1989. Two children were bom to the marriage: Kevin Jr., born in 1990, and Alex, born in 1992. Michele also had two children from previous marriages, Nathan, bom in 1978, and Andrea, born in 1983, who resided with the parties for most of their marriage. In 1996, the parties’ relationship began to deteriorate, and Michele filed a petition for dissolution of marriage in January of 1997.

Trial was held in September of 1997. The district court entered a decree which granted the parties joint custody of the children, with Chauncey having primary physical care. The court denied Michele’s motion to reconsider and motion for a new trial. Michele now appeals.

Scope of review. In this equity action, our review is de novo. Iowa R.App. P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 453 (Iowa 1981). We give weight to the fact findings of the trial court, especially when considering the credibility of the witnesses, but are not bound by them. Iowa R.App. P. 14(f)(7).

Primary physical care. In assessing an issue of child custody, the controlling consideration is the interest of the children. In re Purscell, 544 N.W.2d 466, 468 (Iowa App.1995). The court determines placement according to which parent can minister more effectively to the children’s long range best interests. In re Marriage of Buttrey, 538 N.W.2d 322, 324 (Iowa App.1995) (citing In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984)). The court’s objective is to place the children in the environment most likely to bring them to a healthy physical, mental, and social maturity. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa App.1996). 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 par *713 ent should have a greater burden than the other. In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa App.1996).

We identify numerous factors to help determine which parent should serve as the primary caretaker of the children in a divorce. In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa App.1997) (citation omitted); see Iowa Code § 598.41 (1997). Some factors are given greater weight than others, and the weight ultimately assigned to each factor depends on the particular facts of each case. See Daniels, 568 N.W.2d at 54; In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).

Michele contends that the district court’s decision to award primary care to Chauncey is not in the best interests of the children and is not supported by evidence in the record. She first argues that the court failed to take into account Chauncey’s physical abuse of herself, her son Nathan, and their son Kevin.

Pursuant to Iowa Code section 598.41 and prior ease law, domestic abuse is a factor in determining the custodial parent. See Daniels, 568 N.W.2d at 54; see also In re Marriage of Brainard, 523 N.W.2d 611, 614-15 (Iowa App.1994). Domestic abuse is, in every respect, dramatically opposed to a child’s best interests. Daniels, 568 N.W.2d at 55.

At trial, Chauncey admitted to instances of physical aggression with Michele and his stepson, Nathan. He denied, however, ever abusing their son, Kevin. Chauncey characterized the incidents with Nathan as defensive in nature, as Nathan, age eighteen at the time, was a foot taller than Chauncey and weighed more than twice as much. Chauncey also admitted to a few instances in which he became physical during arguments with Michele. He admitted to choking her on two occasions and shoving her into a mirror on another. He maintained, however, that Michele was equally aggressive in picking the fights and was verbally and physically abusive toward him. Michele conceded that she participated physically in these fights, and admitted to once putting her hands around Chauncey’s neck when she was angry and the aggressor.

We do not minimize the seriousness of domestic violence and the negative impact it has on children. However, we also recognize some relationships are mutually aggressive, both verbally and physically. In those situations, a claim of domestic violence must not be used by either party to gain an advantage at trial, but should be reserved for the intended purpose — to protect victims from their aggressors.

In this case, the trial court recognized that the aggressive behavior was mutual and we give deference to the trial court’s first-hand observations of the parties’ demeanor at trial. On our de novo review of record, we agree that the aggressive behavior was mutual.

We also note that the allegations of abuse surfaced for the first time during the dissolution proceedings; none of these incidents were reported to the police and neither party ever sought a protective order. In addition, Michele’s concerns about Chauncey’s temper and her fear of future abuse are in contradiction with her actions and her testimony at trial. Michele agreed to a joint care arrangement, and left the children in Chauncey’s care when she moved out of the home at the end of their relationship. It is irreconcilable for Michele to fear that Chauncey would hurt Kevin or Alex yet leave the boys in Chauneey’s care. Finally, and most revealing, Michele testified that she didn’t believe Chauncey would ever hurt the children.

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In Re the Marriage of Barry, 588 N.W.2d 711, 1998 Iowa App. LEXIS 76, 1998 WL 966140 (iowactapp 1998).

588 N.W.2d 711 (In Re the Marriage of Barry) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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