from the Iowa District Court for Polk County, Douglas F.
mother appeals from a decree establishing paternity, custody,
visitation, and support. AFFIRMED.
A. Simons of Simons Law Firm, P.L.C., West Des Moines, for
B. Howie of Shindler, Anderson, Goplerud & Weese, P.C.,
West Des Moines, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
Hensch and Nicholas Mysak are the parents of H.M., born in
August 2014. Shortly after the birth of the child, Hensch and
Mysak ended their romantic relationship. Although no longer
in a romantic relationship, Hensch and Mysak cohabited until
November 2015. At that time, Mysak moved out of the shared
residence and into his own residence. In February 2016,
Hensch filed this action to establish paternity, custody,
visitation, and support. Although Hensch's prayer for
relief requested sole legal custody and physical care of the
child, the parties entered an agreement on temporary matters,
agreeing to joint legal custody and shared care of the child.
The parties exercised joint legal custody and shared care of
the child through trial. Following trial, the district court
entered its decree, making the temporary arrangement
permanent and ordering Mysak to pay child support. Hensch now
appeals. She seeks physical care of the child.
review of equitable proceedings is de novo. See Iowa
R. App. P. 6.907; Wilker v. Wilker, 630 N.W.2d 590,
594 (Iowa 2001). We review the entire record and decide anew
the factual and legal issues preserved and presented for
review. See In re Marriage of Williams, 589 N.W.2d
759, 761 (Iowa Ct. App. 1998). Although our review is de
novo, we afford deference to the district court for
institutional and pragmatic reasons. See In re Marriage
of Morrison, No. 16-0886, 2017 WL 936152, at *1 (Iowa
Ct. App. Mar. 8, 2017). This means we give weight to the
district court's findings of fact. See In re Marriage
of Gust, 858 N.W.2d 402, 406 (Iowa 2015). This also
means we will affirm the district court unless the district
court failed to do substantial equity. See In re Marriage
of Mauer, 874 N.W.2d 103, 106 (Iowa 2016);
In re Marriage of Lukowicz, No. 14-0088, 2015 WL
162089, at *4 (Iowa Ct. App. Jan. 14, 2015) (using
substantial equity standard). In exercising our review,
"[p]rior cases are of little precedential value, except
to provide a framework for analysis, and we must ultimately
tailor our decision to the unique facts and circumstances
before us." In re Marriage of Kleist, 538
N.W.2d 273, 276 (Iowa 1995) (citing In re Marriage of
Will, 489 N.W.2d 394, 397 (Iowa 1992)).
physical care is at issue, our primary consideration is the
best interests of the child. See Iowa R. App. P.
6.904(3)(o). "The objective of a physical care
determination is to place the children in the environment
most likely to bring them to health, both physically and
mentally, and to social maturity." In re Marriage of
Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Our case law
provides "a nonexclusive list of factors to be
considered when determining whether a joint physical care
arrangement is in the best interests of the child."
In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa
Ct. App. 2007). "The factors are (1)
'approximation'-what has been the historical care
giving arrangement for the child between the two parties; (2)
the ability of the spouses to communicate and show mutual
respect; (3) the degree of conflict between the parties; and
(4) 'the degree to which the parents are in general
agreement about their approach to daily matters.'"
Id. (quoting Hansen, 733 N.W.2d at 697-99).
petitioner and respondent were never married, no higher
burden of proving fitness as a parent rests upon the father.
The legal analysis employed in resolving a question
concerning the custody of a child born of such a union is the
same as that which would have been utilized if the
child's parents had been married and a dissolution of
their marriage had resulted." Lambert v.
Everist, 418 N.W.2d 40, 42 (Iowa 1988). See
Iowa Code § 600B.40 (2016) (providing section 598.41
shall apply in determining the visitation and custody
arrangements of a child born out of wedlock). Where, as here,
either parent requests joint or shared care of the child, if
the district court "denies the request for joint
physical care, the determination shall be accompanied by
specific findings of fact and conclusions of law that the
awarding of joint physical care is not in the best interest
of the child." Iowa Code § 598.41(5)(a).
"[T]his passage does not create a presumption in favor
of joint physical care." In re Marriage of
Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). It does,
however, require a specific finding that joint physical care
is not in the best interest of the child. See Iowa
Code § 598.41(5)(a).
the foregoing principles in mind, we turn to the present
case. Shared physical care approximates the parties'
prior care arrangement. Both parents took time off from work
after H.M.'s birth to care for the child. The child lived
with Hensch and Mysak from the time of his birth until
November 2015, when Mysak moved out of the shared residence.
The care arrangement between that date and February 2016 is
unclear. However, from February 2016 through the time of
trial, the parties exercised an agreed-upon shared-care
arrangement. The arrangement has worked well. Both parents
are gainfully employed and can support the financial needs of
the child. The parents live in close proximity to one
another, making transportation and exchanges easier. The
child is thriving in the current care arrangement.
discounts the importance of the approximation factor in this
case. She argues the arrangement has not been of long
duration. We reject the notion that the care arrangement was
not of sufficiently long duration to have significance in the
case. Hensch and Mysak have exercised shared care of H.M. for
all or almost all of his life. The arrangement has proven
beneficial to the child. While past performance is not
necessarily a predictor of future success, in family law
matters, past performance is a strong indicator of what is
yet to come. See Hansen, 733 N.W.2d at 696
(explaining "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").
time of trial, the parties' ability to communicate was
strained. This weighs against an award of shared physical
care. As in many cases of recent vintage, much of the
communication conflict arises out of the parents'
inability to stop sending each other electronic
communication, particularly text messages. The district court
aptly called this a "state of virtual
cohabitation." The district court made several findings
in this regard:
The parties trade accusations regarding the extent and nature
of their texting. In preparation for trial Nicholas had a
friend analyze the number of the parties' text messages
to show they were sending and receiving a similar number to
and from each other. However, the sheer number of texts does
not tell the entire story. In tone and substance, many of
Nicholas' written communications to Mandy, though
ostensibly about H.M., display a focus on Mandy.
Nicholas' texts tend to be longer and they frequently
devolve into attempts to draw Mandy into arguments or