In re the Marriage of Gilo and Louch

• Court: Court of Appeals of Iowa
• Decided: September 27, 2023
• Docket: 22-2009
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-2009 Filed September 27, 2023

IN RE THE MARRIAGE OF KWOT OMOT GILO AND ARIAT OKURI LOUCH

Upon the Petition of KWOT OMOT GILO, Petitioner-Appellant,

And Concerning ARIAT OKURI LOUCH, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Craig M.

Dreismeier, Judge.

Kwot Gilo appeals the provision of the dissolution degree awarding Ariat

Louch physical care of their minor son. AFFIRMED.

P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs,

for appellant.

Erin O. Planalp of Iowa Legal Aid, Council Bluffs, for appellee.

Considered by Greer, P.J., and Schumacher and Badding, JJ. 2

GREER, Presiding Judge.

Kwot Gilo appeals from the physical-care determination in the decree

dissolving his marriage to Ariat Louch, arguing that the district court incorrectly

granted Ariat physical care of their minor child, born in 2011.1 On appeal, Kwot

asserts that the district court should have granted him physical care because

relocating the child to Minnesota was not in the child’s best interest, Ariat’s

language barrier impedes their child’s development, she neglected the child’s

dental health, and she denied Kwot meaningful contact with the child. Upon our

de novo review, we find that awarding physical care of the child to Ariat serves his

best interests and, accordingly, affirm.

I. Background Facts and Prior Proceedings.

Kwot and Ariat married in Ethiopia in December 1989. Kwot moved to the

United States in 1994 and speaks, reads, and writes Anuak,2 Amharic, and

English. With Kwot’s help, Ariat moved to the United States in 2000. While she

speaks, reads, and writes Anuak, she can speak, read, and write in English on

only a limited basis. At the dissolution trial, Kwot testified he believed Ariat’s poor

grasp of English limited her parenting role as he felt she could not fill out school

forms or medical care documents for the child. Ariat contended she has functioned

well as a parent and employee since 2000 but acknowledged she is often

dependent on help from her friends or Kwot. Since arriving in the United States,

Kwot attained an associate’s degree in computer technology and works as a case

1 These parents had three children together but only the youngest is impacted by

these proceedings. 2 The record also has this language spelled Anyuk and Anyuak. 3

manager in a refugee center. Although the parties disputed the availability of

education for girls in Ethiopia, it was undisputed that Ariat arrived in the United

States without any formal education, yet she has maintained part-time

employment, most recently in a food processing plant. Their child speaks, reads,

and writes English, but he is not proficient in Anuak and the parties disputed how

well the child and Ariat could communicate.

In 2011, when the child was an infant, Ariat moved with the child to

Minnesota; she testified that Kwot helped her move and she thought he was going

to move there with her. He testified she left without his knowledge or agreement.

As another reason for the move, Ariat pointed to her need for medical treatment in

that state. Kwot remained in Iowa with the older two children and raised them

alone until Ariat returned to Iowa and moved back in with him. The timing of this

family living arrangement was disputed at the dissolution trial—Ariat said she was

gone one year while Kwot maintained she spent four years in Minnesota.

After returning to Iowa, Ariat filed a petition for relief from domestic abuse

in August 2016, and the district court granted a temporary protective order that

was in place until the case was dismissed eleven days later. Kwot petitioned for

dissolution of marriage at the same time but voluntarily dismissed it. Then, in

March 2018, Kwot and Ariat had an altercation that resulted in a charge of domestic

abuse assault causing injury or mental illness against Kwot. When explaining that

incident at the dissolution trial, Ariat testified that Kwot pushed her out of bed and

onto a space heater; Kwot testified that he pushed her with his feet and she was

hit by a door. Both parties agreed that Ariat was bleeding and required a trip to

the emergency room for stitches; they also agreed that the child was present in the 4

home at the time. Kwot pled guilty to disorderly conduct and a one-year criminal

no-contact order was put into place. Following the institution of the no-contact

order, the parties began living at separate residences.

While the parties were living apart, Kwot visited the children in the evenings

and on weekends five or six times each week. But once the middle child graduated

from high school, Ariat testified her medical condition required she move back to

Minnesota for specialized treatment at a clinic there. So, in September 2021—

after Ariat moved, taking the youngest child with her—Kwot again petitioned to

dissolve the marriage and asked that he be awarded physical care of the child.

Now that Ariat and the child were again living in Minnesota, Kwot attempted

visitation with the child. At trial, Kwot alleged that Ariat would not allow him access

to the child or to the school he was attending in Minnesota. Over Thanksgiving,

when Ariat would not permit the child to spend the night with Kwot, he decided to

request a temporary order giving him physical care of the child. In his application,

Kwot alleged that Ariat unilaterally moved out of state with the child and was

refusing to allow Kwot any “meaningful” parenting time, visitation, or

communication with the child. Around this same time, Kwot noticed that the child

had a baby tooth that had not fallen out and caused the permanent tooth to remain

impacted.

In December 2021, the district court held a hearing on the application for

temporary physical care, which Ariat did not attend.3 The district court granted

temporary joint legal custody with physical care to Kwot and ordered that any visits

3 Ariat was served notice of the hearing, but cited the language barrier as her

reason for not attending. 5

between Ariat and the child take place in Iowa and Kwot should facilitate daily

contact between the two. At the dissolution trial, Ariat contended she had limited

contact with the child following the temporary hearing, both in person and by

phone, and that Kwot did not communicate with her about the child’s medical care

or schooling. Kwot challenged this characterization, testifying he paid for her to

return to Iowa for the older son’s college graduation, during which time he offered

unlimited visitation, and that when he went to Minnesota on several occasions he

would facilitate visitations between Ariat and the child.

The dissolution trial was held September 8–9, 2022. At trial, both Kwot and

Ariat presented a stipulation as to all issues, including an agreement over joint

legal custody, but they disputed who should have physical care of their child. The

district court awarded physical care to Ariat, finding that, while Kwot had been

involved in the child’s life, Ariat was historically his primary caregiver and her

English-language abilities were sufficient to meet the child’s day-to-day needs.

The physical-care award was subject to Kwot’s reasonable and liberal visitation

rights. Kwot filed a post-trial motion to reconsider, amend, or enlarge the award of

physical care to Ariat. The district court overruled the motion, finding that Kwot

had made the same arguments at trial and that the district court found them

unconvincing then. Kwot now appeals.

II. Standard of Review.

We review the district court’s award of physical care de novo. In re Marriage

of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015); see Iowa R. App. P. 6.907 (“Review

in equity cases shall be de novo.”). We are not bound by the district court’s fact

findings, but we generally defer to them because the district court is better able to 6

make the factual determinations since it is “able to listen to and observe the parties

and witnesses.” In re Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App.

2009); In re Marriage of Scurr, No. 11-1905, 2012 WL 2122306, at *3 (Iowa Ct.

App. June 13, 2012) (“[W]e believe the district court, with its unique ability to

assess witness demeanor, was in the best position to determine which . . . parent

should serve as physical caretaker.”).

III. Discussion.

In assessing which physical-care arrangement is in the child’s best

interests, we consider a number of factors from Iowa Code section 598.41(3)

(2021) as well as those identified in In re Marriage of Winter, 223 N.W.2d 165,

166–67 (Iowa 1974), including the child’s needs and characteristics, the parents’

abilities to meet those needs, and the effect of continuing or disrupting the child’s

current status. We also consider the unique facts of each case, ensuring the child

is placed “in the environment most likely to bring them to health, both physically

and mentally, and to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683,

695 (Iowa 2007). But central to the physical-care determination are continuity of

caregiving and stability as “past caretaking patterns likely are a fairly reliable proxy

of the intangible qualities such as parental abilities and emotional bonds that are

so difficult for courts to ascertain.” Id. at 696 (citing Katherine T. Bartlett, Child

Custody in the 21st Century: How the American Law Institute Proposes to Achieve

Predictability and Still Protect the Individual Child's Best Interests, 35 Willamette

L. Rev. 467, 480 (1999)). Importantly, “[p]hysical care issues are not to be resolved

based upon perceived fairness to the spouses, but primarily upon what is best for 7

the child.” Id.; see Iowa R. App. P. 6.904(3)(o) (“In child custody cases, the first

and governing consideration of the courts is the best interests of the child.”).

On the plus side, the district court found that both parents have

demonstrated the ability to care for the child and neither parent disputed that at

trial—hence the agreement for joint legal custody. But because of the distance

between the parents’ homes, the parties could not agree which parent could best

serve as the primary caregiver. After considering the factors important in making

this decision and—although it is a close call—we agree with the district court that

the child’s best interests require he remain in Ariat’s physical care. First, the child

spent most of his life in Ariat’s physical care. See Iowa Code § 598.41(3)(d)

(considering “whether both parents have actively cared for the child before and

since separation”). For at least the first year of the child’s life, Ariat and the child

lived in Minnesota, while Kwot lived in Council Bluffs with the two older children.4

And while the timeframe is unclear, Kwot testified that he only lived under the same

roof as the child for three years, or less than one-fourth of the child’s life. And even

when Ariat returned to Iowa, while Kwot lived in the same house as the child until

2018, Kwot testified that Ariat was responsible for the child’s daily care, which

included providing meals for the family and maintaining the apartment. What

makes this a close question is that Kwot successfully raised the two older children

while Ariat was in Minnesota the first stretch—supporting their educational pursuits

(both are in college now) and encouraging involvement in sports, clubs, and

church. And as to the child at issue here, by all accounts, from December 2021

4 Kwot claims that it was four years rather than the one year Ariat contends, but

that does not help his case over the caregiving status quo pre-decree. 8

until trial in September 2022, Kwot handled physical care duties well. This

confirms the importance of his continued involvement in the child’s life, but we note

he can still support the child’s education, involvement in activities, and medical and

dental care even from afar. In the past both parties were involved with the child’s

health needs and, as for Kwot’s assertion that Ariat failed to address the child’s

dental problem, the evidence at trial was that the older children noted a problem,

not the parents, and no one objected to the child’s need for braces.

What tips the scales here is the stability and continuity of caregiving that

Ariat provided since the child’s birth. Physical care is defined as “the right and

responsibility to maintain a home for the minor child and provide for the routine

care of the child.” Iowa Code § 598.1(7). Other than the months that Kwot had

temporary physical care of the child, for the majority of the years of the child’s life,

Ariat took responsibility for routine caretaking, even adapting her work schedule to

ensure that she could do so. We afford weight to the parent who historically acted

as the child’s primary caregiver. See Eviglo v. Bedia, No. 22-2108, 2023 WL

4530263, at *2 (Iowa Ct. App. July 13, 2023); Flick v. Stoneburner, No. 15-1930,

2016 WL 2743449, at *2 (Iowa Ct. App. May 11, 2016). In this instance, Ariat has

historically provided an environment supporting the best interests of the child and,

thus, affirming physical care with Ariat is appropriate.

Second, Kwot urges that Ariat’s language difficulties will impose barriers for

the best interests of the child. As for the child’s alleged inability to communicate

with his mother, the record did not support that dynamic. Instead, Kwot testified

that during the time he had temporary care, Ariat and the child spoke on the phone

multiple times each week, and Kwot submitted phone records to support this. A 9

panel of our court had addressed the impact of English-language ability as a

physical-care factor to consider. See In re Marriage of Garcia Lopez, No. 16-0915,

2016 WL 6269895, at *2 (Iowa Ct. App. Oct. 26, 2016). In Garcia Lopez, our court

found because the father spoke only Spanish, while the mother was bilingual—

speaking Spanish and English—the father’s lack of attendance at medical and

school appointments coupled with his inability to help with school assignments

mitigated against a physical-care award to him. Id. Here, even accepting that Ariat

has a lower level of English proficiency than Kwot, the record establishes that Ariat

took the child to medical and dental appointments, enrolled him in school, and saw

to his daily needs including preparing meals. She maintained employment, has a

driver’s license, and, with some help, navigated government funding sources to

access an apartment. Her language abilities do not outweigh the other factors

considered, including Ariat’s historical caretaker role and her ability to meet the

child’s day-to-day needs.

Lastly, Kwot’s history of domestic abuse weighs against giving him physical

care of the child. See Iowa Code § 598.41(3)(j) (allowing for consideration of

whether there is a history of domestic abuse); In re Marriage of Mulford, No. 03-

1259, 2004 WL 894566, at *2 (Iowa Ct. App. Apr. 28, 2004) (“[D]omestic abuse is

a significant factor to be considered when determining which parent should receive

physical care.”). More specifically, “domestic abuse is in every respect

dramatically opposed to a child’s best interest.” Mulford, 2004 WL 894566, at *2;

see also Hoggatt v. Walton, No. 16-0404, 2016 WL 7393903, at *1–2 (Iowa Ct.

App. Dec. 21, 2016) (awarding physical care to the mother when the father denied

that he committed domestic abuse despite two convictions for it). Kwot has one 10

conviction for disorderly conduct stemming from a domestic dispute. The record

shows that two protective orders were granted against Kwot—a temporary

protective order and the criminal no-contact order stemming from the disorderly-

conduct conviction. Likewise, Ariat testified about an earlier incident of alleged

domestic abuse from 2016 and stated that Kwot had been beating her up for years

but that she only got the police involved once because she was thinking of their

children. This is yet another factor that weighs towards awarding physical care

with Ariat.

As his final claim on appeal, Kwot asserts that Ariat denied him meaningful

contact with the child while she and the child were living in Minnesota. The district

court noted that both parents had failed to support open contact and

communication, and the court emphasized that the both “need to actively work on

supporting each other’s role in caring for [the child].” We agree and see much of

the lack-of-communication claims to be part of the jockeying for physical-care

status. With this issue at the forefront at trial, Ariat testified that she had no

intention of denying Kwot access to visits with the child, and the district court found

this statement credible. And to the contrary, the district court found that Kwot was

more likely to deny Ariat meaningful contact. Although we are not bound by them,

we give weight to the factual findings of the district court concerning the credibility

of witnesses. Iowa R. App. P. 6.904(3)(g); In re Marriage of McDermott, 827

N.W.2d 671, 676 (Iowa 2013). Plus, Ariat provided credible reasons for the second

move to Minnesota: access to medical care and support from her friends and family

in Minnesota, similar to the time she first moved to Minnesota. See Scurr, 2012

WL 2122306, at *3 (finding that a move for employment and to be close to family 11

did not preclude an award of physical care). For this reason, we do not find the

factor involving the denial of meaningful contact weighs towards awarding physical

care to Kwot.

IV. Conclusion.

“In close cases such as this, we give careful consideration to the district

court’s findings.” In re Marriage of Reed, No. 09-0029, 2009 WL 4122884, at *6

(Iowa Ct. App. Nov. 25, 2009); see also In re Marriage of Roberts, 545 N.W.2d

340, 343 (Iowa Ct. App. 1996) (“[I]n the end we determine this to be a close case,

for both parents love their [child] very much and each is capable of providing for

their long-range best interests. In situations such as this, we note the district court

had the parties before it and was able to observe and evaluate the parties as

custodians.”). Here, the district court found both Kwot and Ariat to be appropriate

parents before awarding physical care to Ariat. Because we find that awarding

physical care of the child to Ariat will serve the child’s best interests, despite Kwot’s

objections to a relocation to Minnesota and Ariat’s English-language abilities, we

affirm the district court.

AFFIRMED.