Opinion
No. 1-870 / 01-0840
Filed February 20, 2002
Appeal from the Iowa District Court for Poweshiek County, James P. Rielly, Judge.
Jayson Mull appeals the decision of the district court that placed the physical care of the parties' child with Kim Turner, and in the alternative he appeals the visitation schedule. AFFIRMED AS MODIFIED.
Barry S. Kaplan, of Fairall, Fairall, Kaplan, Hoglan, Condon Frese, Marshalltown, for appellant.
Thomas D. Grabinski, Grinnell, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Jayson Mull appeals the decision of the district court that placed the physical care of the parties' child with Kim Turner. In the alternative, he seeks increased visitation with the child. We affirm as modified.
Jayson and Kim lived together in LeGrand, Iowa, for a short period of time in 1999. After Kim became pregnant, but before the child was born, they separated. Their child, Alexa, was born on June 5, 2000.
Jayson moved to Marshalltown, where he works for Fisher Control Company. He has two previous convictions for operating while intoxicated (OWI) and his driver's license has been suspended. Kim moved to Indianola, where she married Tony Huffman. In January 2001 Tony was transferred to Estherville, and the Huffmans moved there. Kim is employed at a bank. In addition to Alexa, Kim has two children from previous relationships.
Kim filed a petition against Jayson seeking to establish paternity and child support. After testing showed Jayson was Alexa's father, he and his family sent her cards and letters. Kim responded in a very angry manner, making statements such as "the day she calls you dad is the day I die." She asked Jayson to give up his parental rights so that Tony could adopt the child. Jayson sought physical care of the child, or visitation. The parties agreed to temporary visitation every Sunday from 1 p.m. to 4 p.m.
Because Jayson did not have a driver's license, his parents drove him to visitation every week. They would also be able to bring Alexa to visit with Jayson.
The district court entered an order on May 7, 2001. The court determined Kim should have physical care of Alexa. Jayson was ordered to pay child support. Until Alexa is three years old, Jayson may have visitation on alternate Saturdays from 10 a.m. until 6 p.m., in the city where Kim resides. After Alexa becomes three years old, visitation will increase to alternating weekends from 5 p.m. Friday until 5 p.m. Sunday, alternating holidays, and two weeks in the summer. Jayson appealed the physical care and visitation provisions.
I. Scope of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the trial court, but is not bound by them. Iowa R. App. P. 14(f)(7).
II. Physical Care
Jayson asserts that he should have physical care of Alexa. He points to Kim's previous angry statements and claims that she does not support his relationship with Alexa. He also claims Kim is unstable — she is currently in her third marriage, and has three children by three different fathers.
In child custody cases our first and governing consideration is the best interests of the child. In re Marriage of Buttrey, 538 N.W.2d 322, 324 (Iowa Ct. App. 1995). The court's objective is to place the child in the environment most likely to bring the children to a healthy physical, mental, and social maturity. In re Marriage of Rodgers, 470 N.W.2d 43, 45 (Iowa Ct. App. 1991). The criteria governing custody decisions is the same regardless of whether the parties were previously married or not. In re Petition of Purscell, 544 N.W.2d 466, 468 (Iowa Ct. App. 1995).
We agree with the district court's conclusion Alexa should be placed in Kim's physical care. While Kim made some angry statements, she soon realized Jayson was determined to assume a place in Alexa's life and agreed to visitation. At the hearing she testified she had placed her anger behind her. Kim is currently in a stable relationship with her husband, Tony. Alexa has a relationship with her half-siblings. Alexa's needs are being met, and we find no reason to overturn the district court's decision.
III. Visitation
Jayson feels the district court's visitation schedule is unduly restrictive. He states he is able to take care of Alexa now and he should not have to wait until she is three years old before he can begin overnight visitation. He asks for alternate weekends, alternate holidays, and several weeks in the summer.
Generally, we have considered liberal visitation rights to be in a child's best interests. In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct. App. 1994). Both parents are charged with maintaining the best interests of the child, and thus with cooperating with visitation. In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991). A child should be assured the opportunity for the maximum continuing physical and emotional contact with both parents. In re Marriage of Ruden, 509 N.W.2d 494, 496 (Iowa Ct. App. 1993) (emphasis in original).
We determine the visitation schedule set in place until Alexa becomes three years old does not ensure Jayson the opportunity for the maximum continuing physical and emotional contact with his child. We modify the visitation schedule to implement at the present time the visitation schedule which would be implemented when Alexa becomes three years old, including visitation on alternate weekends from 5 p.m. Friday until 5 p.m. Sunday, alternating holidays, and two weeks in the summer, as set out in the decree of custody and paternity. In addition, when Alexa is five years old, we increase the amount of summer visitation to four weeks.
We affirm the district court decision, except as we have modified the visitation schedule as set forth above. Costs of this appeal are assessed to Jayson.
AFFIRMED AS MODIFIED.