from the Iowa District Court for Scott County, Mary E. Howes,
father appeals the district court's order modifying the
physical care provisions of a custody decree concerning his
Jennifer M. Olsen of Olsen Law Firm, Davenport, for
B. Howie of Shindler, Anderson, Goplerud & Weese, P.C.,
West Des Moines, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
Tressel and Brandon Kuehl are the parents of one child,
O.J.K., born in 2015. Becky and Brandon never married and
were in a relationship until approximately five months after
O.J.K.'s birth. On October 3, 2016, the court entered a
decree awarding both parties joint legal custody and shared
physical care of O.J.K. The court noted Becky and
Brandon's troubled relationship and Becky's intrusion
on Brandon's parenting time. The court expressed its
concern with Becky's interference, which was "often
over minor and somewhat orchestrated reasons," including
constantly texting Brandon and needlessly involving the
police without a reasonable basis. Further, the court was
concerned about Becky's denial of visitation. The court
expressed its hope that the situation would change and found
that joint legal custody and shared physical care was in
O.J.K.'s best interests. The court ordered Brandon to pay
child support and required the parent relinquishing custody
to provide transportation to the other parent's
October 26, Becky and Brandon entered into a stipulation
modifying the decree as to the days they would have custody
in order to work better for the parties' schedules.
Further, the parties agreed to deviate from the guideline
amount of child support and that, going forward, Brandon
would have no support obligation. The stipulation also
required Brandon's name be added as an emergency contact
at O.J.K.'s daycare and preschool. The district court
approved the parties' stipulation the same day.
February 10, 2017, Becky filed a petition for relief from
domestic abuse against Brandon based on an incident which
occurred in December 2016. She alleged that during a custody
exchange at Brandon's house, Brandon sexually assaulted
her. The court granted a temporary protective order, halting
Brandon's visitation with, and custody of, O.J.K. On
February 22, 2017, the district court resumed visitation as
previously ordered and required all visitation exchanges to
occur at Brandon's mother's house. On March 21, the
court entered a protective order by consent agreement, which
continued the custody and visitation arrangement as
previously ordered. For the incident, Brandon was arrested,
ultimately pled guilty, and was granted a deferred judgment
to a charge of assault causing bodily injury. Based upon the
assault, the Iowa Department of Human Services (DHS)
initially returned a founded child-abuse assessment against
Brandon for denial of critical care. However, DHS
subsequently modified the finding from founded and placement
on the child-abuse registry to confirmed without placement on
July, Becky filed a custody modification petition. She cited
Brandon's assault conviction and the parties'
inability to co-parent as substantial and material changes of
circumstances to justify modification. She requested physical
care of O.J.K., child support, and attorney fees. Brandon
denied Becky's application, stating that Becky was the
party to blame for their inability to co-parent. He requested
either the court deny Becky's application or, if the
court determined there was a change of circumstances
justifying a custody modification, physical care be awarded
to him. He also requested Becky pay child support and
attorney fees. The court held a trial in early February 2018.
In March, Becky moved to reopen the evidence to allow
evidence of Brandon's recent arrest for operating while
intoxicated (OWI) to be added to the record. Becky argued
that the outcome of this arrest could potentially affect
custody and visitation, as Brandon may be incarcerated and
his driving privileges suspended. On April 19, the court
filed its ruling on the modification petition, finding a
substantial change in circumstances had occurred to support
modification and found Becky to be the superior
parent.Based upon these findings, the court
continued joint legal custody and awarded Becky physical
care. Brandon appeals the modification, contending the
district court erred in finding a substantial change of
circumstances warranting modification of physical care and
that Becky could provide superior care. Both parties request
appellate attorney fees.
review petitions to modify custody de novo. In re
Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).
"Although we make our own findings of fact, 'when
considering the credibility of witnesses the court gives
weight to the findings of the trial court' even though we
are not bound by them." Id. (quoting In re
Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989)).
The best interests of the child is our primary consideration.
Iowa R. App. P. 6.904(3)(o). We must consider and "base
our decision primarily on the particular circumstances of the
parties," and "[p]rior cases have little
precedential value." Melchiori v. Kooi, 644
N.W.2d 365, 368 (Iowa Ct. App. 2002).
order to modify physical care,
the applying party must establish by a preponderance of
evidence that conditions since the decree was entered have so
materially and substantially changed that the children's
best interests make it expedient to make the requested
change. The changed circumstances must not have been
contemplated by the court when the decree was entered, and
they must be more or less permanent, not temporary. They must
relate to the welfare of the children. A parent seeking to
take custody from the other must prove an ability to minister
more effectively to the children's well being.
Hoffman, 867 N.W.2d at 32 (quoting In re
Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).
This places a heavy burden upon the parent requesting the
modification as "once custody of children has been fixed
it should be disturbed only for the most cogent
reasons." Id. (quoting Frederici, 338
N.W.2d at 158). When determining physical care, our goal
"is to place the [child] in the environment most likely
to bring them to health, both physically and mentally, and to
social maturity." In re Marriage of Hansen, 733
N.W.2d 683, 695 (Iowa ...