JEFFREY L. SAVARY, Plaintiff-Appellee,
ELISABETH MURDACH, Defendant-Appellant.
from the Iowa District Court for Woodbury County, Edward A.
mother appeals from the physical-care provision of the
district court's decree.
Rosanne Lienhard Plante of Second Opinion Legal Center and
Mediation Service, P.L.C., Hinton, for appellant.
H. Lane of Craig H. Lane, P.C., Sioux City, for appellee.
Considered by Vaitheswaran, P.J., Bower, J, and Blane, S.J.
Murdach appeals the physical-care provision of the district
court's decree, which provided joint physical care of the
minor child, N.T., to Elisabeth and the child's father,
Jeffrey Savary. Elisabeth maintains the court should have
given her physical care of the minor child and asks for an
award of appellate attorney fees. Jeffrey asks that we affirm
the district court's shared-care provision and award him
appellate attorney fees.
review custody decisions de novo. Melchiori v. Kooi,
644 N.W.2d 365, 368 (Iowa 2002). We base our decision
primarily on the circumstances of the parties presently
before us. Id. As always, we are guided by the best
interests of the child at issue. See In re Marriage of
Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
deciding what arrangement of physical care is in the
child's best interests, we apply the same legal analysis
for unmarried parents as those who were once married. See
Hensch v. Mysak, 902 N.W.2d 822, 825 (Iowa Ct. App.
2017). There is no presumption in favor of either a mother or
a father, In re Marriage of Kunkel, 555 N.W.2d 250,
253 (Iowa Ct. App. 1996), and child-custody decisions are not
an issue of reward or fairness for the parents,
Hansen, 733 N.W.2d at 696. While we consider an
award of joint physical care when either parent requests it,
there is no presumption in favor of joint physical care.
See Iowa Code § 598.41(5)(a) (2016) (providing
"the court may award joint physical care to both joint
custodial parents upon the request of either
parent" (emphasis added)); Hensch, 902
N.W.2d at 825 (reiterating the supreme court's earlier
holding that section 598.41(5)(a) "does not create a
presumption in favor of joint physical care" (quoting
In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa
deciding the optimal care arrangement for the child, we
consider the nonexclusive factors set out by our legislature
in Iowa Code section 598.41(3).See Iowa Code §
600B.40(2) ("In determining the visitation or custody
arrangements of a child born out of wedlock, . . . the court
shall consider the factors specified in section 598.41,
subsection 3."). We also consider (1) stability,
continuity of caregiving, and approximation; (2) the ability
of the parents to communicate and show mutual respect; (3)
the degree of conflict between parents; and (4) the degree to
which the parents are in general agreement about their
approach to daily matters. Id. at 695.
our de novo review of the record, we agree with the district
court that joint physical care is in the child's best
interests. We recognize that there were initially some hard
feelings between the parties in this case. Elisabeth was
angry with Jeffrey for not being a support when the child was
first born and diagnosed with her condition. Jeffrey
originally questioned paternity and the parties disputed what
Jeffrey needed to learn about the child's physical
condition before Elisabeth would allow him to have overnight
visits with the child, which led Elisabeth to cut off
Jeffrey's visits altogether for one and one-half years.
according to both parents' testimony, things went well
after the court entered the temporary order granting Jeffrey
visitation and setting up a visitation schedule. Elisabeth
never took any action to prevent a scheduled visit, and the
parents were flexible when visits needed to be changed due to
issues with work or family matters. Additionally, Jeffrey and
his wife testified they would continue to support
the child's relationship with Elisabeth, and
Jeffrey's wife testified the child had never said
anything that would lead the wife to believe Elisabeth has
said negative things about Jeffrey in front of the child.
and Elisabeth have also been able to communicate regarding
the child's physical condition. Jeffrey wanted to explore
the option of using doctors and surgeons closer to Iowa to
treat the child, but he and his wife also testified they were
willing to continue the child's treatment with her
current out-of-state specialists if they could not find
comparable care nearby. The child has a close relationship
with her half-sibling, Elisabeth's older child, and at
least one of her step-siblings, who lives with Jeffrey and
his wife half the time. Additionally, the homes of the two