from the Iowa District Court for Linn County, Fae Hoover
appellant appeals from the child visitation provisions of her
decree with the appellee.
Christopher R. Kemp of Kemp & Sease, Des Moines, for
R. Ramsey-Kacena, Cedar Rapids, for appellee.
Considered by Doyle, P.J., Mullins, J., and Carr, S.J.
Grabill appeals from the child visitation provisions of her
decree with Tyler Swift. She asserts the district court
should have granted her additional visitation with their
child, K.S. We find the district court should not have
granted Swift discretion to decide visitation with Grabill.
Therefore, we reverse that part of the order and remand for
entry of an order for definite visitation with Grabill.
was born in 2012. The parties have never married. On July 28,
2017, Swift filed his petition to establish paternity, care,
and support for K.S. On March 23, 2018, the Iowa Department
of Human Services removed K.S. and two half-siblings from
Grabill's care after police found drug paraphernalia in
her home. K.S. was later adjudicated a child in need of
assistance (CINA). Meanwhile, the district court found
Grabill in default regarding Swift's petition after she
failed to appear multiple times. On September 19, the court
held a hearing on the default, in which both parties
appeared. At this time, Grabill was allowed one two-hour
supervised visit with K.S. each week for the CINA proceeding.
On October 8, the court issued the decree, which granted
joint legal custody; placed physical care of K.S. with Swift;
ordered visitation with Grabill at Swift's sole
discretion upon dismissal of the CINA proceeding, with
Grabill having at least two twenty-minute phone calls with
K.S. each week; and established child support and other
matters. Grabill now appeals the visitation provisions.
review child visitation orders de novo. Callender v.
Skiles, 623 N.W.2d 852, 854 (Iowa 2001); Iowa R. App. P.
6.907. "We need only give weight to the trial
court's factual findings, but are not bound by
them." Callender, 623 N.W.2d at 854; Iowa R.
App. P. 6.904(3)(g). Our primary concern is the best
interests of the child. Callender, 623 N.W.2d at
855; Iowa R. App. P. 6.904(3)(o).
initial matter, Swift asserts Grabill failed to preserve
error on her argument. 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."). He argues that, although she
briefly testified, the hearing was on her default and she
never argued for visitation before the district court. Given
our de novo standard of review and because the district court
squarely ruled on visitation, we will pass on the question of
error preservation and address the merits of Grabill's
arguments. See State v. Taylor, 596 N.W.2d 55, 56
(Iowa 1999) (bypassing error preservation and proceeding to
the merits of the issue raised on appeal). Our decision to
consider the merits also squares with In re Marriage of
Huston, 263 N.W.2d 697, 700 (Iowa 1978), which held that
a defaulting party to a dissolution proceeding may have
appellate review. De novo review will generally be limited to
"(1) scope of relief granted, and (2) equities of the
decree as determined by an examination of the entire record
made at trial." Huston, 263 N.W.2d at 700.
district court ordered visitation with Grabill at Swift's
sole discretion upon dismissal of the CINA proceeding. Our
supreme court has long recognized courts
should not make the right of visitation contingent upon an
invitation from the party having the custody of the child, or
require the consent of one parent for the other to visit the
child, . . . thereby leaving the privilege of visitation
entirely to the discretion of the party having the child in
Smith v. Smith, 142 N.W.2d 421, 425 (Iowa 1966)
(quotation omitted). More recently, this court said:
It is well established that the district court is the only
entity that can modify a custody or visitation order, subject
to the review of the appellate courts. This obligation to
modify a decree cannot be delegated to any person or entity
because that person or entity has no jurisdiction to render
such a decision. The legislature has granted to the court the
responsibility to make an impartial and independent
determination as to what is in the best ...