Summary
placing children in custody of parent "fully capable of providing ... the necessary physical and emotional support" for children
Summary of this case from In re MalenaOpinion
No. 1-830 / 00-1806.
Filed May 15, 2002.
Appeal from the Iowa District Court for Linn County, THOMAS M. HORAN, Judge.
Father appeals from an order modifying a dissolution decree to grant physical custody of his two children to their mother. REVERSED AND REMANDED.
Thomas Gillespie, Cedar Rapids, for appellant.
Mary Linn Gourley of the Legal Services Corporation of Iowa, Cedar Rapids, for appellee
Heard by SACKETT, C.J., and HUITINK and HECHT, JJ.
Matthew Shook appeals from an order modifying a dissolution decree. He contends the court erred in eliminating joint physical care and granting his former wife Kimberly physical care of the couple's two children. We reverse and remand for further proceedings.
I. Background Facts and Proceedings .
Matt and Kim were married on July 18, 1992. They are parents of two children born during the marriage: Anthony (A.J.) who was born May 25, 1994, and Mariah who was born March 20, 1996. In November of 1996 Kim was paralyzed from the arms down as a result of an automobile accident. She is severely obese, has no motor control below her shoulders, uses a motorized wheelchair, and needs daily assistance to perform routine tasks and bodily functions.
After Kim was released from the hospital, she returned home to live with Matt and the two children. Matt continued to work full-time, and a caretaker was hired to live at the residence and assist Kim with her personal needs.
On March 4, 1998, Matt and Kim were divorced but continued to live together. The divorce decree incorporated the parties' stipulation that granted the parties' joint legal custody and joint physical care and made no property division. The district court expressly retained jurisdiction to determine physical care if the parties elected to physically separate at some time in the future. In February of 1999, Matt moved out of the family home and left the children in Kim's care. Thereafter, Matt exercised liberal visitation with the children.
In April of 2000, the children went to Matt's house for a spring break visitation. Apparently frustrated by what he perceived as inadequacies in Kim's parenting of the children, Matt refused to return them to her care at the end of the break. Around that same time, Matt married another woman, Heather, who was raising two children of her own.
Due to Matt's refusal to return the children to her care, Kim filed an application for modification of the dissolution decree and requested she be granted physical care of the children. Matt counterclaimed, contending the children's best interests would best be served if he provided physical care. Following a hearing, the district court found Kim has the superior ability to minister to the needs of A.J. and Mariah, and granted her their physical care. Matt appeals from this order.
II. Standard of Review .
Our review of child custody modifications is de novo. In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997). We give weight to the district court's fact-findings, particularly when considering the credibility of witnesses, but they do not bind us. Id.
III. Physical Care .
In assessing an issue of child custody, the controlling consideration is the best interest of the children. In re Petition of Purscell, 544 N.W.2d 466, 468 (Iowa Ct. App. 1995). The question is not which home is better, but whether the parent seeking modification can offer the children superior care. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). Therefore, the parent seeking custody must prove an ability to minister more effectively to the children's well-being. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).
The objective should always be to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. See Winter, 223 N.W.2d 165, 167 (Iowa 1974). The court should also consider the characteristics and needs of the children, the characteristics of the parents, the capacity and desire of each parent to provide for the needs of the children, the relationship of the children with each parent, the nature of each proposed environment, and the effect of continuing or changing an existing custodial status. In re Marriage of Kunkel, 550 N.W.2d 250, 253 (Iowa Ct. App. 1996).
IV. Analysis .
Kim's physical condition is a factor we consider in determining primary physical care. See In re Marriage of Winter, 223 N.W.2d at 167 (stating the physical condition of the parties seeking physical care of the children is a factor). We are careful to note, however, Kim's disability should not be and is not the sole factor in determining who should receive physical care of the children. See Harper v. Harper, 559 So.2d 9, 10 (La.Ct.App. 1990) (addressing custody question where mother suffered from spina bifida). We are mindful of the consideration California courts have given the extent to which a parent's disability may affect a child custody determination. They have stated:
In particular, if a person has a physical handicap it is impermissible for the court simply to rely on that condition as prima facie evidence of the person's unfitness as a parent or of probable detriment to the child; rather, in all cases the court must view the handicapped person as an individual and the family as a whole. To achieve this, the court should inquire into the person's actual and potential physical capabilities, learn how he or she has adapted to the disability and manages its problems, consider how the other members of the household have adjusted thereto, and take into account the special contributions the person may make to the family despite or even because of the handicap. Weighing these and all other relevant factors together, the court should then carefully determine whether the parent's condition will in fact have a substantial and lasting adverse effect on the best interests of the child.In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979).
Keeping in mind these considerations, we are concerned Kim's physical condition seriously impacts her ability to minister effectively to the daily needs of her two children, now ages seven and five. Kim is severely obese and her paralysis from the shoulders down enables her to move about only with the aid of a motorized wheelchair. Kim's condition makes her dependent on either in-home care providers or her parents, with whom she now lives, for her every day care, from house cleaning, cooking, bodily functions, and bathing.
There was substantial testimony that Kim is limited in her ability to control and physically supervise the children. Her wheelchair is too wide to fit through the doors into the children's rooms, and she cannot enter to reach the children when they retreat within. Neighbor Karen Mehaffey testified it was practically an every-day occurrence that she would receive a phone call from Kim stating her kids were lost and she needed help finding them. Mehaffey would frequently find Mariah and A.J. wandering unsupervised in the trailer court or they would show up unannounced at her house. She testified Kim often did not know where the children were. On several occasions Mehaffey removed Mariah from the middle of the street while Kim was at home in bed, unaware of what Mariah was doing or where she was. Another witness, certified nurse's aid Teresa Winders, testified the children knew they could get away from Kim and frequently took advantage of this. On one occasion, Mariah was able to find matches and light a fire on Kim's bed at 2:00 a.m. On another occasion Mariah was bitten by a dog when allowed to leave Kim's house unsupervised. Moreover, the children were described as "out of control" and their behavior generally deteriorated after the parties separated.
Our decision on physical care is not based simply upon Kim's physical restrictions. Teresa Winders testified that Kim often spends the day lying on the bed or watching TV. This concern was echoed by Karen Mehaffey, who had almost daily contact with the family between April of 1997 and April of 1999. In addition, Kim's close friend Wendi Martin testified that during one six-week stretch, Kim never got out of her bed. Although such physical inactivity may constitute a normal response to a severe and tragic injury, we conclude the best interests of the two active young children require more energy, attention, and supervision than Kim has been able to provide since the injury.
We note that Kim has had in-home care providers helping her, and that she now lives with her mother and step-father in their home. These individuals help her with her personal needs and with the supervision and care of the children. Without such assistance she would likely reside in a care facility. Although a loving and supportive extended family is a valuable resource in parenting young children, we must base our physical care determination primarily upon the relative strengths and weaknesses of the parents.
We find Matt is fully capable of providing A.J. and Mariah the necessary physical and emotional support on a consistent basis. The children enjoy being with Matt, who is a hard worker and a good parent. Various witnesses testified, and Kim freely admits, Matt was able to successfully address some problem behaviors the children had been exhibiting while in her care. Kim acknowledged Matt was able to calm the children down and improve their behavior during the time they were consistently under his care. Matt enjoys fishing and camping with the children, takes them to the park, enrolls them in soccer and tee ball, and takes them to church and bible school.
V. Conclusion .
Based on our de novo review of the record, we conclude A.J.'s and Mariah's best interests will best be served by placing them in Matt's physical care. Matt has proven by a preponderance of the evidence he can offer the children more consistent, superior care and is more likely to enable the children to reach a healthy physical and emotional maturity. We therefore order that Matt shall have physical care of the children. We remand for the entry of an order regarding visitation and child support based on the current situations of the parties.
REVERSED AND REMANDED.
HUITINK, J., concurs; SACKETT, C.J., dissents.
I would affirm the district court decision to award primary physical care to Kim.
Superficial evaluations of people with disabilities are often made which unduly limit them far beyond the scope of their disabilities. A cursory examination of these circumstances might lead one to conclude that Kim, who is paraplegic, must be less capable of tending to her children's needs than their able-bodied father, Matt. However, a thorough examination of the evidence in this case, together with what should be our reluctance to find Kim any more disabled than she truly is, compel me to conclude, as the district court did, that primary physical care of the children should remain with Kim.
The evidence cited by the majority to support changing physical care consists of testimony by witnesses who were unfamiliar with Kim's living situation at the time of the custody hearing. Karen Mehaffey, Kim's neighbor from April 1997 to April 1999, testified that Kim did not properly supervise her children, as they would wander around the trailer court without her knowledge or retreat into their rooms where she could not follow due to the narrowness of the doorframes and the width of her wheelchair. There was similar testimony from Teresa Winders, who was Kim's home caretaker for seven months following Kim's April 1997 release from the hospital, and Wendi Martin, Kim's former friend, who, together with her three children, moved into Kim's trailer from September of 1999 to March of 2000 to provide Kim care and to escape an abusive relationship.
With respect to the issue of too-narrow doorframes, I would submit that Kim should be the last person to shoulder responsibility for the daily inconveniences she suffers due to society's slow progress toward better-handicapped accessibility.
By the time of the custody hearing Kim's living situation and the problems with supervision which had accompanied it had greatly improved. As Ms. Mehaffey admitted, her observations of Kim had been during the years immediately following the accident when Kim did not have steady in-home care to help her supervise her children. She has that care now. In June of 2000 Kim was able to leave her small, crowded trailer in which these witnesses would have observed her, and move to a spacious four-bedroom, two-living-room home shared with her mother and stepfather, who were acting as caretakers, and with another live-in aide employed by the State to care for Kim. In the trailer there had hardly been room to move around, so, understandably, Kim remained in her bed. In this new home there is ample space, so Kim spends a great deal more time in her wheelchair. Although there were long periods of adjustment, there was much to adjust to. By the time of the custody hearing, the concerns voiced by these witnesses had been addressed.
The majority also argues that the ability of Kim to find help to care for her children should not necessarily work in her favor, as the custody decision should be made on the "relative strengths and weaknesses of the parents." I note that Matt, who is employed and consequently often away from the children, will similarly have to depend on the assistance of others to care for the children.
Although Kim clearly cannot be very physically active, testimony indicated that she has always been the children's primary care provider, even after the accident when she and Matt lived together, and she has maintained a normal mother-child relationship with them. Kim reads to her children and makes them meals. She fingerpaints with them and plays Uno. Testimony also showed that Kim enjoys an affectionate relationship with her children, that Mariah leaves her own bed in the middle of the night to climb into her mother's bed to sleep. As is apparent here, effective parenting should not necessarily be measured by whether the parent can fish and camp, or go to the park and play tee ball. I believe the great strides in basic human understanding the children will achieve as a result of their mother's disability greatly outweigh any detriment to them of being unable to engage her in a game of soccer in the backyard.
Kim is quite bonded to her children and they to her. Social worker Cynthia Harrington, the only professional who testified in this case, recommended that Kim have primary physical care. She has had extensive interaction with Kim and has observed her circumstances for a lengthy period of time. The district court had the opportunity to observe Ms. Harrington, as well as the other witnesses, and agreed with Ms. Harrington that physical care belonged with Kim.
The majority provides no authority to support its position that a paraplegic mother may be less capable of adequately parenting her children. To the contrary, as evidenced by the very cases the majority cited addressing this issue, courts have been reluctant to deem people with disabilities less fit to parent as a consequence of their disabilities. In In re Marriage of Carney, 598 P.2d 36, 41-42 (Cal. 1979), the California Supreme Court awarded custody of two minor children to their quadriplegic father, reasoning that in determining custody, physical condition of a parent was of relatively minor importance and that the judgment of the trial court in that case, denying the father custody, had been affected by "serious misconceptions as to the importance of the involvement of parents in the purely physical aspects of their children's lives." In Harper v. Harper, 559 So.2d 9, 10 (La.Ct.App. 1990), the court affirmed a decision naming a mother with spina bifida domiciliary parent of her child for the school year. Entering into the court's decision was the willingness of family, as is the case here, to provide assistance in the care of the child. Id. Although in In re Marriage of Bergman, 466 N.W.2d 274, 276 (Iowa Ct. App. 1990), our court modified the physical care provision of a dissolution decree in favor of the father after the mother had suffered a severe head injury, in that case the experts had urged that modification. In this case they have not. In fact Ms. Harrington has urged the opposite.
I agree with the professional recommendation and the district court's decision in this case. I would affirm.