January 11, 2017
MOLLY KAYE HURLBERT, Plaintiff-Appellee,
SCOTT EUGENE HARRIS, Defendant-Appellant.
from the Iowa District Court for Union County, Richard B.
father appeals the court's denial of joint physical care.
D. Fisher of Fisher Law Firm, P.L.C., West Des Moines, for
J. Zimmerman of Nielsen & Zimmerman, P.L.C., Corning, for
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
Harris and Molly Hurlbert are the parents of now
seven-year-old O.H. In an action under Iowa Code chapter 600B
(2015), the district court granted the parents joint legal
custody of their daughter and placed physical care with
Molly. On appeal, Scott asks for joint physical care. While
the cordial and constructive relationship between Scott and
Molly does suggest the feasibility of joint physical care, we
ultimately agree with the district court's assessment
that the parents' historic pattern of caregiving tips the
scale slightly toward Molly as the physical-care provider.
was born in 2009. Scott and Molly moved in together in 2010
and raised their daughter under the same roof until November
2014, when they amicably separated. Scott and Molly both
remained in Creston, residing less than two miles apart.
Scott lived with his girlfriend Kristina and her three
children. Scott also had visitation with his three biological
children from an earlier marriage. Molly lived alone with
in the separation, Scott did not exercise regular visitation,
but Molly and Scott soon formalized a parenting schedule,
without court intervention, in December 2014. The schedule
included visitation for Scott on alternating weekends, every
Wednesday overnight, and a few additional hours the Monday
evening following Molly's weekend parenting
January 2015, Molly filed a petition to establish paternity,
custody, visitation, and support. In his answer, Scott
admitted paternity and requested joint physical care (often
referred to as shared physical care). Molly asked for
physical care of O.H. to be placed with her. In December
2015, the district court heard testimony and issued a decree
awarding physical care to Molly. Following Scott's motion
for amended findings and conclusions under Iowa Rule of Civil
Procedure 1.904(2), the court issued an amended decree
confirming it was not in O.H.'s best interest "that
Molly and Scott have shared physical care." The court
explained its physical-care ruling as follows:
[O.H.] has lived with Molly since the parties' breakup
until the time of trial. [O.H.] is a happy child and does
well in school. Molly and Scott have a history of good
communication and acting in the best interests of their
child. The parties have no fundamental disagreements
regarding child rearing, disciplinary matters, and schooling.
Molly having primary care and Scott having liberal visitation
has gone well in the past. Molly is the one providing the
primary care for the child and is the person best suited to
meeting her needs. Due to the young age of the child it is in
her best interests not to disrupt the status quo. Molly has
and can be expected to promote and encourage the relationship
between Scott and the child.
appeals the district court's denial of joint physical
care. We review the custody decision de novo. See
Iowa R. App. P. 6.907; Lambert v. Everist, 418
N.W.2d 40, 42 (Iowa 1988) (explaining we employ the same
legal analysis in resolving questions concerning custody of a
child born to unmarried parents as we do in the case of
divorcing parents). Despite our de novo review, "we give
considerable weight to the sound judgment of the trial court
who has had the benefit of hearing and observing the parties
firsthand." In re Marriage of Kleist, 538
N.W.2d 273, 278 (Iowa 1995).
case presents a refreshing scenario where both parents are
respectful of one another and encourage their daughter to
have a positive relationship with the other
parent. O.H. is lucky to have two loving parents
who hold her best interests in such high regard. But the
civility between Molly and Scott makes the decision regarding
joint physical care a close call.
argues joint physical care would be in O.H.'s best
interests under the factors identified in In re Marriage
of Hansen, 733 N.W.2d 683, 696-99 (Iowa 2007). To assess
the viability of shared care, the Hansen court
zeroed in on four factors: (1) the stability and continuity
of care-giving, (2) the ability of the parents to communicate
and show mutual respect, (3) the degree of conflict between
the parents, and (4) the degree to which the parents
generally agree about their approach to daily child-rearing
matters. 733 N.W.2d at 696-99. As already discussed, factors
two, three, and four point to the viability of joint physical
care. But the remaining factor-stability and continuity of
care-giving-was the guiding light for the district
court's decision. The court emphasized the success of the
parties' voluntary parenting schedule, in place for the
year leading up to the trial, under which O.H. lived with
Molly and had liberal visitation with Scott. Noting O.H. was
happy and doing well in school, the district court declined
to disrupt "the status quo."
reviewing the record anew, we reach the same conclusion as
the district court. Molly testified she believed it served
O.H.'s best interests to remain on the established
schedule, telling the court: "I think it's really
important to keep things the same for [O.H.]" because
"she's young. It just gives her a steady
environment." While not critical of the busy household
maintained by Scott, Molly testified: "I feel like with
me it's one on one more. I'm able to meet her
testified Scott did not normally seek more time in deviation
from their set schedule, but she had occasionally asked him
to take O.H. for an additional overnight when Molly needed to
study for a test, and he generally agreed. Molly also told
the court she would be flexible if Scott ever wanted more
time with O.H. Scott testified O.H. was doing well on her
Hansen, the court reiterated: "[S]tability and
continuity of caregiving are important factors that must be
considered in custody and care decisions." Id.
at 696 (quoting a scholar for proposition that "past
caretaking patterns likely are a fairly reliable proxy of the
intangible qualities such as parental abilities and emotional
bonds that are so difficult for courts to ascertain").
On the issue of emotional bonds, O.H.'s maternal
grandmother testified O.H. confided in her several times that
"she loves her dad very much and she wants to see him
but that she would rather live with her mother."
record supports continuing the routine for O.H. as
established voluntarily by the parents. Hansen
advised: "[W]here one spouse has been the primary
caregiver, the likelihood that joint physical care may be
disruptive on the emotional development of the children
increases." Id. at 698; see also In re
Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974)
(listing as a factor "the effect on the child of
continuing or disrupting an existing custodial status").
Molly was the primary caregiver in the year before the trial.
Like the district court, we find switching to shared care at
this juncture would not be in O.H.'s best interests.
brief, Molly asks for appellate attorney fees in the amount
of $2040. Under Iowa Code section 600B.26, we may award the
prevailing party reasonable attorney fees. An award of
appellate attorney fees rests within our discretion. See
Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005). In
determining whether to award fees, we consider "the
needs of the party making the request, the ability of the
other party to pay, and whether the party making the request
was obligated to defend the trial court's decision on
appeal." See id. (citation omitted). Having
considered these factors, we determine Scott shall pay $1000
of Molly's appellate attorney fees. Costs shall be
assessed equally between the parties.
 Scott's time with O.H. coincided
with his visitation with his other children, which Molly
believed was important: "She deserves to be around her
siblings." Molly also confirmed that when Kristina's
children were factored in, Scott would have seven children in
his household when O.H. had her overnights with him. Molly
testified she believed they had enough room to accommodate
 Scott even offered an exhibit showing
polite text messages between him and Molly to illustrate
their ability to effectively communicate.