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Sutton v. Avino

Court of Appeal of Iowa

August 7, 2013

PATRICK HENRY SUTTON, Plaintiff-Appellant,
v.
GERALDINE G. AVINO, Defendant-Appellee.

Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.

A father appeals a district court order awarding the mother of his twins physical care of the children.

Michael J. Lanigan, Waterloo, for appellant.

Gordon E. Allen of the Drake Legal Clinic, Des Moines, for appellee.

Considered by Eisenhauer, C.J., and Vaitheswaran and Doyle, JJ.

VAITHESWARAN, J.

We must decide whether the district court acted equitably in granting a mother physical care of her twin daughters, where she parented her children with the significant assistance of an unrelated family.

I. Background Facts and Proceedings

Patrick Sutton and Geraldine Avino are the parents of twins, born in 2001. Sutton was involved in the children's lives for the first nine or ten months. In the ensuing six years, he had no contact with them, although he paid the Child Support Recovery Unit $75 per month.

Sutton reinitiated contact with the twins in the summer of 2007. By agreement with Avino, he visited them every weekend, and, later, every other weekend.

Meanwhile, the Iowa Department of Human Services investigated reports that Avino was abusing drugs and denying the children critical care. The department initiated services to address the issues, the State filed a child-in-need-of-assistance action, and the twins were transferred to foster care.

The juvenile court eventually returned the twins to Avino's care, but the former foster parents continued to play a large assistive role. By 2010, they had agreed to house and care for the children five days a week and obtained permission to educate them in their school district.

In November 2011, Avino sought an increase in Sutton's child support obligation. Two months later, Sutton filed a petition seeking physical care of the now almost eleven-year-old children. Avino responded with her own petition for physical care.

Before the dueling petitions could be tried, the department again investigated Avino for drug use and issued a founded child abuse report against her. The department reinitiated services for the family, including supervised visits between the twins and each of their parents. This time, the State did not file a child-in-need-of-assistance petition in juvenile court. The attorney for the former foster ...


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