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Upon Petition of Freerking

Court of Appeal of Iowa

October 23, 2013

Upon the Petition of SOPHIA MAE FREERKING, Petitioner-Appellant, and Concerning ZACHARY ROGER PREUL, Respondent-Appellee.

Appeal from the Iowa District Court for Crawford County, Gary E. Wenell, Judge.

Sophia Freerking appeals from the district court order refusing in part to terminate Zachary Preul's visitation with their minor child.

Gina C. Badding of Neu, Minnich, Comito & Neu, P.C., Carroll, for appellant.

Joseph J. Hrvol of Joseph J. Hrvol, P.C., Council Bluffs, for appellee.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.

MULLINS, J.

Sophia Freerking petitioned for modification of the decree establishing custody and visitation of her minor child with Zachary Preul. The court granted Sophia's request for sole legal custody of the child, but denied her request to terminate visitation with Zachary, who is incarcerated. On appeal, Sophia challenges the portion of the order relating to visitation.

Because Sophia has not shown in-person visitation would likely harm the child, we affirm the portion of the court's order granting Zachary with bimonthly two-hour visits. However, we vacate the portion of the order granting Zachary two five-minute telephone calls per month.

I. BACKGROUND FACTS AND PROCEEDINGS.

Sophia and Zachary were involved in an on-again, off-again relationship from 2009 until January 2012. They have one child together, born in April 2010. A September 2010 decree provided for joint legal custody of the child and granted Sophia physical care. Zachary was granted visitation each Wednesday evening and alternating weekends, and was ordered to pay $441 per month in child support.

The parties' relationship has been marked by domestic abuse. In December 2010, Zachary pushed Sophia to the ground, breaking her arm; he was charged with domestic abuse assault and pleaded guilty to disorderly conduct. After the relationship ended, Zachary broke down Sophia's front door and a few days later broke her window, prompting Sophia to file a petition for relief from domestic abuse. Then on February 21, 2012—the day after the district court entered a final protective order—Zachary broke into Sophia's home and hit her in the face and arms with a gun while their child slept in the next room.

As a result of the February 21, 2012 attack, Zachary was arrested for first-degree burglary and domestic abuse assault with intent or while displaying a deadly weapon. He pleaded guilty to domestic abuse assault as charged and a lesser charge of second-degree burglary, and is now serving a ten-year prison sentence.

On March 5, 2012, Sophia petitioned the court to modify the custody decree. She sought sole legal custody of the child and asked the court to terminate Zachary's visitation rights. Zachary resisted Sophia's request for sole legal custody and asked for monthly visits with the child.

Following a February 14, 2013 hearing, the district court entered its order modifying the decree. The court granted Sophia sole legal custody of the child but denied her request to suspend visitation. The court granted Zachary one two-hour visit with the child in person every other month, and ...


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