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In re Marriage of Anant

Court of Appeal of Iowa

July 10, 2013

IN RE THE MARRIAGE OF DARRYL A. ANANT AND ZAINAB S. ANANT Upon the Petition of DARRYL A. ANANT, Petitioner-Appellant, And Concerning ZAINAB S. ANANT, n/k/a Zainab S. Abbas, Respondent-Appellee.

Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.

Darryl Anant appeals the physical care provision of the decree dissolving his marriage to Zainab Abbas.

John J. Wood and Kate B. Mitchell of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellant.

Luke D. Guthrie of Roberts, Stevens, Prendergast & Guthrie, P.L.L.C., Waterloo, for appellee.

Considered by Doyle, P.J., and Danilson and Mullins, JJ.

DOYLE, P.J.

Darryl Anant and Zainab Abbas were married in November 2006. They have two children, born in 2008 and 2011. Darryl and the children are United States citizens. Zainab is a Canadian citizen. The parties separated in March 2012.

Trial on the petition for dissolution of marriage was held in November 2012. By that time, Zainab had moved back to Canada to seek employment, and the children had remained in the U.S. in Darryl's care. Both parties appeared and testified at the trial. The district court granted the parties joint custody, and it determined the children should be placed in the physical care of Zainab, subject to liberal visitation by Darryl. Darryl now appeals, arguing the district court erred in awarding Zainab physical care of the children.

We review dissolution of marriage cases de novo. Iowa R. App. P. 6.907; In re Marriage of Veit, 797 N.W.2d 562, 564 (Iowa 2011). We decide the issues raised anew, but we do so with the realization that the district court possessed the advantage of listening to and observing firsthand the parties and witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Consequently, we credit the factual findings of the district court, especially as to the demeanor and believability of witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g); In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007).

In child custody cases, the first and governing consideration is the best interests of the children. Iowa Code § 598.41 (3) (2011). "Physical care" involves the right and responsibility to maintain a home for the minor children and provide for routine care of the children. See In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). In determining whether to award physical care with one parent, the district court is guided by the factors enumerated in section 598.41(3), as well as other nonexclusive factors enumerated in Hansen, 733 N.W.2d at 696-99, and In re Marriage of Winter, 233 N.W.2d 165, 166-67 (Iowa 1974). See Hansen, 733 N.W.2d at 698. Although consideration is given in any custody dispute to allowing the children to remain with a parent who has been the primary caretaker, see id. at 696, the fact that a parent was the primary caretaker of the child prior to separation does not assure an award of physical care. See In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991). Rather, the ultimate objective of a physical care determination is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999); In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996). As each family is unique, the decision is primarily based on the particular circumstances of each case. Hansen, 733 N.W.2d at 699.

In the instant case, it is clear both parties love and care for their children, and both parents are willing and able to serve as care providers for the children. The focus, therefore, is on whether the interests of the children are better served by placement in Zainab's physical care and providing Darryl with visitation. Where the children would flourish in the care of either parent, the choice of physical care necessarily turns on narrow and limited grounds. In close cases, we give careful consideration to the district court's findings. In re Marriage of Wilson, 532 N.W.2d 493, 495-96 (Iowa Ct. App. 1995).

We find this to be one of those cases. Upon our de novo review of the record and considering the factors pertinent to physical care, we find no reason to disturb the district court's placement of the children in the physical care of Zainab. Implicit in the court's decree is the court's finding, as the trier of fact, that Zainab was more credible than Darryl. To be sure, the record reflects that both parents have at times made injudicious choices, and we need not regurgitate them here, because the court's decree clearly establishes it not only recognized these choices by the parents, it took them into consideration in its physical care placement determination. The court also considered Darryl's primary care of the children after Zainab's move, as well as Zainab's historical care of the children, and the consequences of placing the children with Zainab in Canada. Each parent presented evidence they were more willing to support the children's relationship with the other parent. Nevertheless, it was the district court that possessed the advantage of listening to and observing firsthand the parties and witnesses, and it determined Zainab was the one more likely to foster the children's relationship with Darryl, and not the other way around. We have thoroughly reviewed the record, and we simply cannot find the district court erred in its factual findings leading to its ultimate conclusion that it was in the best interests of these children that they be placed with Zainab. Accordingly, we affirm the physical care decision of the district court. Costs on appeal are assessed to Darryl.

AFFIRMED.

Mullins, J., concurs;


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