JOSEPH M. HAMBLETON, Plaintiff-Appellant,
AMBER L. McWHORTOR, Defendant-Appellee.
from the Iowa District Court for Lee (South) County, Mary Ann
father seeking joint physical care of his son appeals from
the district court's order declining to modify a custody
R. Dial of Law Office of Curtis Dial, Keokuk, for appellant.
E. Schroeder of Clark & Schroeder, PLLC, Burlington, for
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
Hambleton and Amber McWhortor are the parents of a son, R.H.,
who was born in January 2013. When R.H. was one year old, the
parents entered a consent decree awarding his physical care
to Amber. In May 2016, Joseph filed a modification action
seeking joint physical care. Finding no substantial change in
circumstances, the district court declined to disrupt the
physical-care arrangement. Joseph appeals, contending the
district court applied an incorrect burden of proof. Because
the district court used the correct standard for a custody
modification and Joseph did not meet that standard, we
Legal Standards and Scope of Review
custody modification case is governed by Iowa Code chapter
600B (2017) because the parents were not married. We apply
the same legal framework to custody and visitation matters
involving unmarried parents as we do to those issues arising
between parents who had been married. See Iowa Code
§ 600B.40 (cross referencing section 598.41).
proceedings between unmarried parties are in equity so our
review is de novo. Iowa Code § 600B.40; Phillips v.
Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). We give
weight to the fact findings of the district court, especially
as to witness credibility, but the findings do not mandate
our result. Christy v. Lenz, 878 N.W.2d 461, 464
(Iowa Ct. App. 2016). The deference we pay to the district
court's decision relates largely to the trial judge's
firsthand opportunity to "hear the evidence and view the
Facts and Prior Proceedings
has been R.H.'s primary caregiver since his birth in
January 2013. In April 2013, Joseph filed a petition to
determine his paternity and set custody, visitation, and
support. Joseph and Amber entered a consent decree on these
issues in January 2014. The decree awarded the parents joint
legal custody, placed physical care with Amber, and granted
Joseph "liberal and reasonable visitation."
one-half years later, Joseph filed a petition to modify the
custody provisions of the decree. The petition noted Amber
had been held in contempt of the decree based on refusing
visitation to Joseph. The petition alleged a substantial and
material change in circumstances since the decree and
asserted it would be in R.H.'s best interests for the
parties to have "shared physical care." Amber
resisted the proposed change in physical care.
district court heard the modification matter in February and
March of 2017. The evidence showed R.H. was a
"well-adjusted" four-year-old and developmentally
on track. Amber and R.H. were living in Fort Madison with her
mother, who worked as a registered nurse. R.H. has a close
bond with his grandmother. Amber also had an infant daughter.
Joseph lived in Keokuk with his fiancé and her
six-year-old daughter. Both parents had steady employment.
Amber had been working for nearly ten years as a cashier at a
filling station. She earned $11.20 per hour, amounting to