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Bailey v. Rinard

Court of Appeals of Iowa

November 22, 2017

TOBI JOHN BAILEY, Petitioner-Appellant,
JORDYNN RINARD, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         A father appeals from the custody determination in a petition to establish paternity, custody, visitation, and support.

          Patrick H. Payton of Patrick H. Payton & Assoc., P.C., Des Moines, for appellant.

          Sally B. Frank, and Jessica Belman, Law Student Attorney of Drake Legal Clinic, Des Moines, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          MCDONALD, JUDGE.

         In July 2016, Tobi Bailey filed a petition against Jordynn Rinard (n/k/a Titus) to establish paternity, custody, visitation, and support for a then-unborn child. The petition averred Rinard told Bailey he was the father of the child. The petition further averred Rinard texted to Bailey that she intended to give the child up for adoption upon birth. Bailey disagreed with this decision. The child, A.B., was born in September 2016. Rinard did not attempt to give up the child for adoption. The matter came on for trial, and the district court established paternity of the child in Bailey, awarded the not-married parents joint legal custody of the child, and awarded Rinard physical care of the child with Bailey to have limited visitation. On appeal, Bailey requests the parties be awarded joint physical care of the child or he be awarded physical care of the child.

         Our 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 Hensch v. Mysak, N.W.2d,, 2017 WL 4050671, at *1 (Iowa Ct. App. 2017). 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)).

         This is an action to establish paternity, custody, and care of a minor child between unmarried persons filed pursuant to Iowa Code chapter 600B (2016). Our analysis with respect to who should have physical care of the child is the same whether the parents are married or unmarried. See Iowa Code § 600B.40 (providing the statutory criteria set forth in section 598.41, for dissolutions of marriage, shall apply the chapter 600B proceedings); Draeger v. Barrick, No. 15-1442, 2016 WL 1697083, at *3 (Iowa Ct. App. Apr. 27, 2016) (citing Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988)). Our guiding consideration is the best interest of the child. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).

         We first address whether joint physical care, or shared physical care, of the child is appropriate under the circumstances. "Although Iowa Code section 598.41(3) does not directly apply to physical care decisions, we have held that the factors listed here as well as other facts and circumstances are relevant in determining whether joint physical care is in the best interest of the child." In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). Hansen set forth four primary considerations: (1) approximation, viz., the historical caregiving relationship between the parties; (2) the level of communication and respect between the parents; (3) the level of conflict between the parents; and (4) whether the parents are in general agreement on the approach to daily matters. Id. at 696- 670.

         Shared care does not appear to be a viable option under the circumstances presented. The district court found shared physical care was inappropriate because (1) the parents have difficulty communicating with each other, (2) the parents reside in different counties, and (3) Rinard has been the primary caregiver and a change would subject A.B.'s life to instability. On appeal, Rinard strongly argues shared care is inappropriate. She argues the parents "do not respect each other" and have critical differences with respect to parenting and lifestyles. She rejects Bailey's contention that the communication between the parties has improved. Instead, she contends there is no indication the parties will overcome their disagreements. She thus concludes shared physical care "is wholly inadequate." On de novo review, we agree, and we see no reason to discuss the factors at great length.

         When joint physical care is not appropriate, "the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights." In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). We are guided by the best interest of the child. See Hoffman, 867 N.W.2d at 32. "The critical issue is determining which parent will do a better job raising the child; gender is irrelevant and neither parent should have a greater burden than the other in attempting to gain custody in an original custody proceeding." In re Marriage of Decker; 666 N.W.2d 175, 177 (Iowa Ct. App. 2003). Iowa long ago abandoned the inference that the best interests of young children are served if custody is awarded to their mother instead of their father. See In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974).

         The factors relevant to the physical care determination are set forth in Iowa Code section 598.41(3) in addition to those developed over time in our caselaw. See In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974) (setting forth and discussing the applicable factors). Relevant considerations include: (1) the characteristics of the child; (2) the needs of the child; (3) the characteristics of each parent; (4) the capacity of each parent to provide for the needs of the child; (5) the relationship between the child and each parent; (6) the relationship between the child and any siblings; (7) the effect on the child of disrupting the existing custodial status; (8) the nature of the proposed environments; (9) the preference of the child; (10) any recommendations by the child's attorney or independent investigator; (11) available alternatives; and (12) any other relevant matters. Id. We consider the relevant factors below.

         When we consider the characteristics and needs of the child, neither parent is favored over the other. A.B was born in September 2016. At the time of trial, he was seven months old. Rinard reported the child does have sensitive skin and possible allergies to strong fragrances. Otherwise, he was healthy and developing appropriately for his age. A.B. has the ...

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