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holding a custody determination could only be based on the mother's residence at the time of trial, even though she testified she planned to move to Massachusetts
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No. 4-470 / 04-0293.
September 29, 2004.
Appeal from the Iowa District Court for Howard County, Bruce B. Zager, Judge.
Respondent appeals from the child custody provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED AND REMANDED.
Judith O'Donohoe of Elwood, O'Donohoe, Stochl, Braun Churbuck, Charles City, for appellant.
Marion Beatty of Miller, Pearson, Gloe, Burns, Beatty Cowni, P.L.C., Decorah, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
Holly Perry appeals from the child custody provisions of the decree dissolving her marriage to Lyle Perry. She contends the district court erred in granting Lyle physical care of the parties' minor children. We affirm as modified.
I. Background Facts and Proceedings.
Lyle and Holly were married in August 1999. They have two children; Chasidy, age seven, and Jaya, age two. At the time of trial, Lyle had obtained his GED and was employed at Leroy Iron and Metal, Inc., earning $420 per week. Holly graduated from high school in 1996 and is employed through Manpower Temporary Services, earning $360 per week. Because the parties jointly filed for bankruptcy, the only issue presented to the court was custody of the children. Since the bankruptcy, the parties have each lived with their respective parents; Holly in Decorah and Lyle in Cresco.
During the marriage, Holly was the primary caretaker of the children. She was also responsible for the family's finances, the purchasing of groceries, scheduling the children's medical appointments and activities, and doing the laundry and housekeeping. Lyle was employed in various industries, including a period of self employment detailing cars.
Lyle has a history of alcohol and substance abuse. He also has a criminal history, beginning in May 1995. His most recent conviction was for third offense possession of a controlled substance in July 2001. Throughout the marriage, Lyle tried to maintain sobriety without success.
In the summer of 2002, Holly met Henry Raczkowski on the internet. Henry lives in Salem, Massachusetts. In January 2003, Holly flew to Boston and met with Henry. Lyle had no knowledge of this relationship. Henry has since visited in Iowa and Holly visited him in Salem, where she visited the school she expects to have her children attend.
On January 30, 2003, Lyle filed a petition for dissolution of marriage. In April, the district court ordered the children in Holly's care until June 6, 2003. Lyle was then granted physical care of the children until July 23, 2003, the expected date of trial. The parties agreed to share placement of the children after that date if the trial was continued to a later date. The matter proceeded to trial in November 2003.
The district court entered its decree on January 26, 2004, granting Lyle primary care of the children. Holly appeals.
II. Scope of Review.
We review a custody order de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). In doing so, we give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Id. at 51.
III. Primary Care.
The best interest of the children is our standard for deciding child custody. Iowa R. App. P. 6.14(6)( o); Murphy, 592 N.W.2d at 683. Our objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Id. at 683. In considering what custody arrangement is in the best interest of the children, we consider statutory factors. Iowa Code § 598.41(3) (2003). All these factors bear upon the "first and governing consideration" as to what will be in the best long-term interest of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). These statutory factors and the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), are appropriately considered in determining the award of physical care. In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992).
In its decree, the court found that although both parties love the children and would be suitable caretakers, Lyle could minister more effectively to the long-range best interests of the children. In reaching its conclusion, the court focused on Holly's relationship with Henry, now her fiancé, and her plans to move with the children to Massachusetts.
In reaching this conclusion, the court has also had to rely upon Holly's announced plan to marry Henry Raczkowski and to move her and the girls to Massachusetts. While Holly has indicated that she has fully considered the possible impact on the girls of a move to Massachusetts, the court is not convinced that this is the case. During her testimony, Holly acknowledges that the girls' relationship with their father should take precedence over her individual relationship with Mr. Raczkowski. She also testified that the girls have a very good and close relationship with both her extended family and Lyle's extended family. She also acknowledged that Chasidy loves school and that both girls have many friends and extended family in the Cresco and Decorah area. However, she does not believe that it would be overly disruptive to take these girls away from their father, grandparents and extended family, Chasidy's school, their church, and their friends which relationships they have enjoyed for their entire lives. She also acknowledged that the children are now happy, healthy, well-adjusted children. Also their educational, religious, social, and moral needs are currently being met here in Iowa. She was unable to answer to the satisfaction of the court how removing these children from this current environment would be of substantial benefit to them.
The court is also not in any way attempting to be disparaging to either Holly or Henry Raczkowski. From the testimony of Holly, her mother, and a review of the deposition taken of Mr. Raczkowski, the court is not concerned about Mr. Raczkowski and his possible involvement with these girls. All indications are that Mr. Raczkowski is a highly educated and responsible individual. Therefore, the court's decision is not based upon any reservations about Mr. Raczkowski. Rather, the court cannot see how a move of these children to Salem, Massachusetts, where they have no family, friends, or other support, is in their best long-term interests. As such, the court has to give substantial weight to what the court knows to be a relatively stable and wholesome environment in Cresco. This environment includes a substantial support group of extended family and friends, which the court is convinced would not be present in Salem, Massachusetts. While the court cannot dispute that the schools may be good, and that the cultural opportunities may be much greater in Salem, Massachusetts, this is impossible for the court to know. The court is not willing to take this chance under the facts and circumstances of this case.
In conclusion, the court is convinced that Lyle is the parent who can minister more effectively to the best long-term interests of these girls. The court is also convinced that he can provide an environment of stability and wholesomeness which the children have enjoyed in the recent past. There simply is no good or compelling reason to take these children away from their friends, extended family, school, or church environment when all indications are that the children are currently happy and well-adjusted. In deciding dissolution cases, the court must attempt to ensure that children will be provided with the stability and routine to ease the traumatic affect that dissolution normally has on children. The court is convinced that placing the children with their father in Cresco will provide the environment most likely to bring these children to a healthy physical, mental, intellectual, and social maturity.
In addition to the network of support cited by the court that the girls currently enjoy in Iowa, the court noted the parties' split custodial arrangement in the six months proceeding trial and Lyle's current sobriety.
Holly contends the court's grant of physical care to Lyle was in error. She cites her role as the girls' primary caretaker throughout the marriage and Lyle's history of angry outbursts, drug and alcohol abuse, and his criminal history.
We note that the parent who has been the primary caretaker of the children during the marriage will not necessarily be designated by the court to be primary caretaker at the time of the divorce. In re Marriage of Burkle, 525 N.W.2d 439, 441 (Iowa Ct.App. 1994). However, we conclude it is in the children's best interest that primary care be granted to Holly. Although Lyle has shown he is a suitable parent for the children and has increased his involvement in the six month preceding trial, his involvement is relatively new. Lyle still depends greatly on his mother to help care for the children.
More concerning is Lyle's history of drug and alcohol abuse. Lyle testified he has been sober since January of 2003. He has been in treatment with an alcohol and drug counselor since February 2003, seeing her on a monthly basis. Lyle also testified that he attends Alcoholics Anonymous and was involved in the creation of a Narcotics Anonymous chapter in Cresco. While Lyle's efforts should be lauded, this is admittedly not Lyle's first attempt at sobriety. Although this attempt at sobriety may succeed, Lyle's relatively short period of sobriety after a nearly ten year history of drug and alcohol abuse makes it difficult to predict.
We then consider Holly's potential move of the children to Massachusetts. Holly testified she contemplated the move not only to continue her relationship with Henry, but also to attend college. Holly testified that she would remain in Iowa if it were a condition made of her to gain physical care of the children, and that Henry would join her in Iowa where she would attend Iowa State University. Holly further testified that she would remain in Iowa if Lyle was granted physical care of the children.
The right of interstate travel is a basic constitutional freedom. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S. Ct. 1076, 1080, 39 L. Ed. 2d 306, 312 (1974). Any infringement upon the fundamental right to travel must be justified by a compelling state interest. Id. at 258, 94 S. Ct. at 1082, 39 L. Ed. 2d at 315. While the court cannot foreclose in advance the right of a custodial parent to move elsewhere, it can set forth provisions to protect the rights of the non-custodial parent in such an event. In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982). To temper the custodial parent's decision to move following the entry of a dissolution decree, Iowa Code section 598.21(8A) provides that a move one hundred fifty miles or more from the residence of the child at the time of the original decree may be considered a substantial change of circumstances. Iowa Code § 598.21(8A) (2001). The purpose of this section is to maintain the relationship of the child with the non-custodial parent. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998).
At the time of the dissolution of marriage, Holly resided in Iowa. A decision on physical care should not be based solely on whether a parent may move at some future date. Nor can the court restrict a parent's constitutional right to move. If Holly chooses to move in excess of one hundred fifty miles, Lyle may request a modification of the dissolution decree.
In summary, we conclude it is in the children's best interest that primary care be granted to Holly. The matter is remanded for consideration of the issues of child support and visitation. Court costs are taxed to Holly.