from the Iowa District Court for Polk County, Scott D.
father appeals a district court order determining visitation
and the surname of his minor child. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Richard N. Tompkins, Jr., of Tompkins Law Office, Mason City,
M. Zimmerman of Grefe & Sidney, P.L.C., Des Moines, for
Danilson, C.J., and Doyle and Mullins, JJ.
Thompson appeals a district court order determining
visitation and the surname of his minor child in favor of the
child's mother, Allyson Fowler. Justin argues (1) the
district court's ruling placing visitation in
Allyson's discretion is an impermissible delegation of
judicial authority and (2) the district court had no
authority to rule on the child's surname. Both parties
request an award of appellate attorney fees.
Background Facts and Proceedings
parties met online through a mutual friend when Allyson was
sixteen years old and Justin eighteen. Their first in-person
meeting was approximately two years later. They started
dating in late 2006 or early 2007 and moved in together in
Nebraska in 2008. In March 2010, United States Marshalls
raided the parties' residence and seized a number of
Justin's electronic devices. Justin was subsequently
federally charged with receipt and distribution of child
pornography, see 18 U.S.C. § 2252A(a)(2)
(2010), and was arrested in July. He pled guilty to the
charge in September. Justin, awaiting sentencing, moved back
to Des Moines in November to be closer to his family. Allyson
remained in Nebraska. After Justin's move to Des Moines,
Allyson discovered she was pregnant. Shortly thereafter,
Allyson moved to Florida to live with her father. In
December, Justin was sentenced to five years in prison. He
began serving his sentence in a federal prison in Minnesota
in February 2011.
parties' child was born in July 2011. Shortly after the
child's birth, Allyson and the child moved to Des Moines
to live with Justin's parents. While Allyson and the
child were living with Justin's parents, they normally
visited Justin in prison every other month. In October 2012,
Allyson officially ended her relationship with Justin. She
moved out of his parents' home a few months later.
Allyson discontinued visiting Justin in prison, but the child
continued to attend visits at the prison with Justin's
parents. Justin was released from prison in December 2014,
after which he was required to report to the Fort Des Moines
halfway house for six months, register as a sex offender for
ten years, and be on probation for five years.
incarcerated, Justin did not complete any sex-offender
treatment or related services. Justin testified that none of
those services were offered at his facility and that he would
have had to transfer to a prison in North Carolina to receive
treatment while incarcerated. The record shows that Justin
discussed that possibility with Allyson early in the period
of his incarceration, but he ultimately decided to stay at
the prison in Minnesota.
was released from the halfway house in June 2015, after which
he moved in with his parents and began his court-ordered
sex-offender treatment. Because Justin is a registered sex
offender per Iowa Code chapter 692A (2015), there are
restrictions on where he may go and with whom he may have
contact. Justin's probation officer and treatment
providers have limited contact with his child, requiring the
presence of an approved chaperone to supervise visits.
Justin's first out-of-custody, chaperoned visit with the
child occurred in August 2015, but in September, Allyson
discontinued allowing Justin to have visitation with the
child. In December, Justin filed a petition to establish
paternity, custody, visitation, and support in which he
requested, among other things, supervised visitation and
establishment of the child's last name as
"Fowler-Thompson." Allyson requested the court
restrict Justin's visitation and establish the
child's last name as "Fowler."
commenced in September 2016. Allyson generally testified her
desire to restrict visitation was based on Justin's lack
of progress in probation and sex-offender therapy. She also
testified that if Justin was able to make progress in the
future, she would be willing to allow visitation. At trial,
Justin testified he agreed his sexual attraction to children
puts his daughter at risk, he recently violated his probation
by viewing pornography, and his return to prison in the near
future "is a possibility."
ruling, the district court granted Allyson sole legal custody
and physical care of the child and, in relevant part, ordered
(1) any visitation between Justin and the child shall be at
Allyson's discretion and (2) the child's last name to
be changed to Fowler. Justin filed a motion to enlarge or
amend pursuant to Iowa Rule of Civil Procedure 1.904(2). The