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10/23/2014 » 10/24/2014
2014 Family Law Seminar

10/27/2014
Termination of Parental Rights (Telephone CLE)

10/28/2014
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10/30/2014
2014 Nuts & Bolts Seminar (Coralville)

Custody & Placement
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Many of the couples in Iowa who seek a divorce will have minor children. Because the well-being of children depends on the quality of their relationship with both parents, it is important that parents understand the legal terms, laws and court orders regarding their children.The courts play an important role in assisting with the future living arrangements for children. Often the mother and father will agree to certain arrangements for the children that are worked out in advance of the court proceedings. Such an agreement is called a "stipulation” and becomes a part of the court’s final order.

Often, parents in the process of divorcing are unable to reach an agreement and the issues of custody and placement are tried before a judge in a courtroom. The judge hears the evidence and the arguments and creates a solution that meets the requirements of the law and attempts to work with the unique circumstances of each family to create custody and placement plans that are in the best interests of the children involved.
Under Iowa law, if there are children involved in a divorce, the parents must attend a court-approved class on how divorce affects children, designed to educate parents about the pitfalls and emotional effect divorce can have on children. The classes also help parents develop strategies to work together to help children adjust to divorce.

What is Legal Custody?
"Custody,” or, "legal custody,” refers to the legal rights and responsibilities a parent has toward their child. This includes the need to make decisions about the child’s health, safety, education, and other major life decisions.
A temporary decision is made regarding custody and visitation at the first court appearance that is re-visited closer to the time of the divorce and can modified to best fit the circumstances. The court will issue a permanent decision at the time of the dissolution, or divorce.

Joint vs. Sole Legal Custody
"Joint custody” means that the legal responsibility for the child is shared equally between the parents. Joint custody does not mean that the child spends equal amounts of time with each parent. Joint custody is generally the preferred form of legal custody. "Sole custody” means that only one parent has the right to make the major life decisions for a child. Sole custody is usually granted when the court believes that it would be better for just one parent to make decisions for the child. In order to give a parent sole custody, the court must find that joint legal custody would be unreasonable and not in the best interests of the child.

When considering whether a particular custody arrangement is appropriate, the court uses a variety of important factors, including:
  • The suitability of each parent as a custodian
  • The psychological and emotional needs of the child
  • The ability of the parents to communicate with one another
  • Who has and who currently is caring for the child
  • Whether the parents are supportive of each other’s relationship with the child
  • The wishes of child, depending on their age and maturity
  • Whether the parents are both willing to accept joint legal custody
  • The geographic locations of the parties
  • Any safety or health issues affecting the child, including domestic abuse, a parental mental illness or substance abuse by a parent.
Joint legal custody is not the same as "physical placement,” which refers to where the child will live. Many parents share joint legal custody of their children, but the children have a physical placement with one parent and enjoy visitation with the other parent.

However, if it can be shown to the court’s satisfaction that it would be physically, or in some cases, emotionally harmful for the child to have contact with one of their parents, the custody and visitation arrangements may be modified to address those issues.

The court’s goal is to act in the best interests of the child when deciding issues of custody and placement. It will order liberal visitation with the non-custodial parent if it is appropriate, and will attempt to assure the child the opportunity for maximum continuing physical and emotional contact with both parents. The purpose of this is to encourage both parents to share the rights and responsibilities of raising a child.

Inability to Agree When You Have Joint Legal Custody

Because parents with joint legal custody both have equal parenting rights, there are times when each parent has a different, contradicting opinion of what decisions ought to be made for a child, for example, a decision regarding what school the child will attend. When this happens, the best course of action is for the parents to try to resolve the disagreement by themselves. Mediators and counselors can often help parents who cannot agree reach a solution.

If the parents still cannot resolve a problem, a motion may be filed with the court to let the court decide which parent should decide the issue. Each party is allowed to appear and speak in court and present their side of the situation. The court makes the final decision.

Physical Placement of Children

After a decision is made about what type of custody parents will have, the court must also decide which parent the child will live with most of the time. "Physical placement” refers to the parental home where the child will live on a regular basis while they attend school. The parent living with the child is the "custodial parent” and the other parent is the "non-custodial” parent.

When a child has been placed within your physical care, you are responsible for the day to day decisions that affect the child. When considering whether a particular placement arrangement is appropriate, the court uses a variety of important factors, including:
  • The child’s age, maturity, mental and physical health
  • The social, educational, moral, material and educational needs of the child
  • The characteristics of each parent
  • The interest level of the parent in providing for and raising the child
  • The relationship between each parent and child
  • The child’s relationship with siblings, if any
  • The effect on the child of changing a placement
  • The home environment and schedule of the parents
  • The child’s wishes, depending on their age and maturity
  • The results of any report made by an outside professional regarding placement
  • Whether or not placement would separate a child from their siblings
  • Any other important information provided to the court.

Sometimes, a child will be placed with one parent during the school year, and the physical placement will change over the summer or holidays. There is usually a placement schedule set up by the parties and the court that will outline where the child will be and when the child will switch locations. This sort of schedule usually covers things like school vacations, holidays and special family events. The most effective arrangement is when both parents are able to work out reasonable arrangements to share care of their child.

The court may also allow the parties to have "joint physical care,” an arrangement where both parents share equal, regular care for the child. This arrangement is usually only made if the parents live close to one another and are able to work effectively together.

Right to Information About Your Children
Each custodial parent is entitled to access to information about their child regarding health and dental, other medical and school records. A parent with joint legal custody of their child may call a doctor or a school directly to request information.

How to Get an Order Changed

One way to get an order changed is for both parents to agree to the change together, put the agreement in writing and have the agreement approved by the court.

If there is a disagreement about the need for a change, custody, placement and visitation orders can be modified by the court if the court finds that a substantial change of circumstances has occurred. The parent seeking to change the arrangement must file an application or petition to modify the most recent orders of the court related to custody or visitation. The party asking the court to change the arrangements will be responsible for demonstrating that major life changes have occurred that affect the best interest of the child and require a new look at the custody and visitation arrangements.

An order may be changed if a parent is unreasonably refusing to honor the arrangements set up by the parties and the court. The court could even change who custody and placement is awarded to if parents fail to follow the visitation schedules.

Refusal to Cooperate, Interference with Visitation

If you believe that the other parent is not cooperating with a court order and you are unable to see or visit with your children, the first thing to do is to find out the times the court order states that you are supposed to be with your children. Remind the other parent of the specific times set out in the order. If your court order fails to set out the specific times for placement and changes in care, you may want to apply to have the order changed to specify the times.

If your former spouse does not comply with custody, placement or visitation orders, you must file a court action against the other parent to resolve the problem. The court can find you "in contempt” if you fail to do what the court orders say. If you disobey orders on custody and placement, you may be cited, punished by the court for contempt and jailed for up to thirty days for each offense. If you deny the other parent the opportunity to interact with the child, or if you commit domestic abuse, these factors will be taken into account by the court when making the final custody determinations.

Paternity

"Paternity” refers to the father of a child. A child born to a couple that is not married is entitled to support and education just as other children are. The parents of a child are each responsible for a reasonable share of the expenses association with raising the child, including the costs of pregnancy and childbirth. An action may be brought in court to legally establish the father of the child. Genetic and/or blood tests are used to establish who the father of the child is. When the father is identified, he can be required to pay child support, and he may request visitation and/or custody of the child if he chooses to do so. Otherwise, the sole legal custody of a child born to unmarried parents belongs to the mother.

To find a legal professional to meet your needs, please visit www.iowafindalawyer.com.


The Iowa State Bar Association • 625 East Court Avenue • Des Moines, IA 50309
Ph. (515) 243-3179 • Fax (515) 243-2511
Email: isba@iowabar.org