from the Iowa District Court for Polk County, Scott D.
mother challenges the physical care provisions of a decree
establishing paternity, custody, visitation, and support.
van Cleaf of Van Cleaf & McCormack Law Firm, LLP, Des
Moines, for appellant.
Hudson II of R.J. Hudson Law Firm, P.C., West Des Moines, for
Potterfield, P.J., and Bower and McDonald, JJ.
Hernandez and Deena Mills are the parents of four children.
Hernandez filed a petition to establish paternity over the
children pursuant to Iowa Code chapter 600B (2016). The
parties stipulated Miguel was the father of the children, and
they tried the issues of custody, visitation, and child
support to the district court. The district court established
paternity of the children in Hernandez, awarded the parties
joint legal custody of the children, awarded Hernandez
physical care of the children, and granted Mills liberal
visitation. Mills timely filed this appeal. In this appeal,
Mills challenges the district court's physical care
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." Hensch v.
Mysak, 902 N.W.2d 822, 824 (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
an action to establish paternity, custody, and care of minor
children between unmarried persons filed pursuant to Iowa
Code chapter 600B. The analysis of who should have physical
care of the children is the same whether the parents are
married or unmarried. See Iowa Code §
600B.40(2) (providing the statutory criteria set forth in
section 598.41, for dissolutions of marriage, shall apply the
chapter 600B proceedings). In making the physical care
determination, we look to the factors set forth in Iowa Code
section 598.41(3) and enumerated in our case law. See In
re Marriage of Hansen, 733 N.W.2d 683, 696-700 (Iowa
2007); In re Marriage of Winter, 223 N.W.2d 165,
166-67 (Iowa 1974). "Each factor, however, does not
necessarily impact the decision with equal force."
In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa
Ct. App. 1997). In considering these factors, our
"ultimate objective is to place the children in the
environment most likely to bring them to healthy mental,
physical, and social maturity." McKee v. Dicus,
785 N.W.2d 733, 737 (Iowa Ct. App. 2010) (altered for
readability). "The controlling consideration is the best
interests of the children." Stieneke v.
Sargent, No. 15-1643, 2016 WL 2745058, at *1 (Iowa Ct.
App. May 11, 2016) (citation omitted). The best interest of
the children includes, but is not limited to, "the
opportunity for the maximum continuing physical and emotional
contact with both parents . . . unless direct physical harm
or significant emotional harm to the child[ren]" may
result from this contact. Iowa Code § 598.41(1)(a);
accord In re Marriage of Kunkel, 555 N.W.2d 250, 253
(Iowa Ct. App. 1996). "[G]ender is irrelevant, and
neither parent should have a greater burden than the other in
attempting to gain [physical care] in an original custody
proceeding." In re Marriage of Decker, 666
N.W.2d 175, 177 (Iowa Ct. App. 2003).
first raises a procedural challenge to the decree. She
contends the issues of custody, visitation, and support were
not properly before the district court because
Hernandez's petition only sought a declaration of
paternity without requesting any other form of relief. Mills
is correct that the petition only sought a declaration of
paternity, but her challenge does not entitle her to relief.
Mills failed to raise this challenge in the district court.
Error was not preserved. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental
doctrine of appellate review that issues must ordinarily be
both raised and decided by the district court before we will
decide them on appeal."). Even if error had been
preserved, the challenge is without merit. Mills had fair
notice these issues were set for trial. The district
court's scheduling order identified custody, visitation,
and support as the issues for trial. In the parties'
mediation agreement, the parties stipulated to paternity and
agreed the only issues for trial were custody, visitation,
and support. The matter came on for trial without objection.
Mills does not identify any prejudice, and we find none.
merits, on de novo review, we agree with the district
court's determination of custody, visitation, and
support. Rather than reciting all of the facts and
circumstances of the case, we choose to discuss items of
particular importance in support of our conclusion.
Hernandez can more consistently minister to the needs of the
children. See Winter, 223 N.W.2d at 168 (concluding
determining which parent can best minister to the needs of
the children is the determinative factor). The parties met
and began dating while still in high school. While still in
high school, Mills became pregnant. Hernandez dropped out of
school and obtained full-time employment to support Mills and
the child. Mills had the child, remained in school, and
graduated. After graduation, the parties lived together for a
period of six years and had three additional children
together. Mills moved out of the parties' residence in
she moved out, Hernandez continued to work full time to
provide for the children. He exercised shared care of the
children with Mills for periods of time. On multiple
occasions, as will be discussed below, Hernandez had
exclusive care of the children. In short, over the course of
the children's lives, Hernandez has been a consistent and
contrast, since leaving the family residence, Mills has had
unstable housing, which resulted in her providing
inconsistent and unsuitable care for the children. See,
e.g., In re Marriage of McKimmy, No. 16-0872,
2017 WL 510961, at *1 (Iowa Ct. App. Feb. 8, 2017)
(recognizing unstable housing as a consideration against
awarding physical care). Mills was evicted from multiple
apartments. She lived on and off with different boyfriends
and relatives for periods of time. More recently, Mills and
her boyfriend moved into a recreational vehicle and decided
to live in various campgrounds in Atlantic, Iowa. This
housing was not suitable for four children. On several
occasions when Mills' housing was not ...