Types of Custody in an Iowa Divorce

This section is designed to give you general information on how courts decide custody and visitation rights in Iowa.

Child Custody and Visitation Mandatory Course

In Iowa, the parties to any action involving child custody and visitation are ordered to participate in a court-approved course to educate and sensitize the parties to the needs of any child or party during and after the proceeding. The course must be taken within 45 days of receipt of service of notice of the petition and application for modification of an order. Unless there is a waiver, a divorce decree will not become final until this course is completed by all required parties.

(IA 598.15)

Types of Custody in an Iowa Divorce

The question of "Who gets custody of the kids?" is one of the most difficult decisions for parents and their children, when parents separate. Custody and visitation are the legal terms for court decisions about how the child will spend time between parents (or others). Custody and visitation are never considered to be final. As situations change, parents can come back to court to request changes.

In Iowa, the court, as much as is reasonable and in the best interests of the child, orders custody and visitation that provides the child the maximum continuing physical and emotional contact with both parents and which will encourage the parents to share the rights and responsibilities of raising the child.

The Iowa courts do not favor the mother or the father in custody matters, but rather look at the relationship of each parent with the child. While grandparents and others may seek custody, there is a presumption in favor of the natural parents, meaning the court is more likely to favor the natural parents over others who may seek custody.

Joint Custody

Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.

  • Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence.
  • In Shared Physical Custody the child has two residences, spending at least 35 percent of the time with the other parent.
  • Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.

Iowa courts first consider awarding joint custody in most cases, with either the mother or the father as the parent with physical custody. In any case, the court's paramount interest is serving “the best interests of the child”. The parents' rights and responsibilities include participation in the minor child's medical care, education, extracurricular activities, legal status, and religious training, among other issues. Courts consider the following issues in determining what custody arrangement is in the best interests of the minor child:

  • Whether each parent would be a suitable custodian for the child;
  • Whether the psychological, emotional, and development needs of the child would suffer due to a lack of active contact with both parents;
  • How well the parents cooperate and communicate with each other regarding the child;
  • Whether both parents have actively cared for the child both before and after the separation or the filing of the petition;
  • Whether each parent can support the child's relationship with the other parent;
  • Whether the proposed arrangement is in accord with the child's wishes, given the child's age and maturity;
  • Whether each parent supports joint custody;
  • The geographic proximity of the parents;
  • Whether the safety of the child, other children or either of the parents will be jeopardized by a joint custodial arrangement;
  • Whether a history of domestic abuse exists.

The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion the children will follow or what school they will attend, the court may strike down your agreement.

In cases in which the parents do not agree about joint custody, if one parent asks the court for joint custody, the court will consider granting joint custody. (598.41(2)(a) the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs. Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be complete and the court will consider anything it believes to be relevant to the custody issue.

Temporary Custody

"De facto" (means "in fact") custody refers to who actually has custody of the child at this time. This can be different from "court-ordered custody." In order to formalize custody before you begin litigation, you will need to file for temporary custody. Temporary custody will be based on the ”best interests of the child” standard. It is not an "initial" award of custody. Instead it is temporary custody while you wait for the court to hold a hearing.

Sole Custody

Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long-range plans and decisions for the education, religious training, discipline, non-emergency medical care, and other matters of major significance concerning the child's welfare. With sole custody, the child lives primarily with one parent, and that parent has the right to make decisions as to the child's everyday needs. Sole Custody is when one parent has both legal and physical custody and the child has only one primary residence.

Split Custody

Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are the age of the children and child preference.

Modifications of Orders

In situations such as the relocation of a minor child by a parent with physical care to a location more than 150 miles from the residence at the time of the custody order, the court may consider that a substantial change in circumstances, and may modify the custody order to preserve the existing relationship between the child and the no relocating parent. For example, the court may order extended vacation time during the summer or at school breaks and may increase the amount of telephone time to compensate for the greater physical distance between the noncustodial parent and the minor child. (598.21D)

Custody Tips

Parents trying to obtain an award of custody would be wise to begin thinking about and preparing a list of your strong and weak points as a parent as well as the other parent's strong and weak points. Describe the interactions and relationship of your child with each parent. For instance, what were each parent's roles in the child's infancy? What were and continue to be the duties of each parent as regards the raising of the child in the household, school, physicians visits, discipline, and so on. Break down you list into time periods and be as specific as possible. Perhaps you work full time to support the family. Perhaps you are a stay-at-home-parent. Whatever your role, the focus of the court is entirely on the best interests of your child when determining an issue like custody. Get involved with your children and their school and social activities especially now when they are probably feeling vulnerable. Never speak ill of the other parent to your child. Keep a journal of events. Know your children's teacher, friends, and interests. Know your children as people. Not only will this help your child through a difficult time, it will help you in maintaining a close and healthy relationship with your children as the separation and divorce from your spouse progresses.

http://www.divorcemag.com/articles/Child_Custody/is_custody_battle_best_for_child.html

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