An Iowa court will be reluctant to modify a child custody determination unless the court determines:
- There's a history of domestic violence or abuse, or
- Direct physical or severe emotional harm will occur to the child, other children, or a parent, if custody is not modified.
In making decisions regarding the child’s physical care, the Court is required to focus on the best interest of the child; the purpose of the physical care order is not to reward or punish either parent. The Court is to consider the statutory factors set forth in Iowa Code Section 598.43(3) as well as the factors identified in In Re Marriage of Winter, 223 N.W.2d 165,166-67 (Iowa 1974):
Factors to be considered in awarding physical care:
1. The characteristics of each child, including age, maturity, mental and physical health;
2. The emotional, social, moral, material, and educational needs of the child;
3. The characteristics of each parent, including age, character, stability, mental and physical health;
4. The capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child;
5. The interpersonal relationship between the child and its siblings. [Siblings including half siblings should be kept together absent good and compelling reason to separate them. In re Marriage of Quirk-Edwards, 509 N.W.2d 476,479 (Iowa 1993); See In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994) (“Siblings should not be separated from one another without good and compelling reasons.”); Will, 498 N.W.2d at 398 (there is a presumption that siblings should not be separated in the absence of good and compelling reasons).
6. The interpersonal relationship between the child and each parent;
7. The effect on the child of continuing or disrupting an existing custodial status;
8. The nature of each proposed environment, including its stability and wholesomeness;
9. The preference of the child, if the child is of sufficient age and maturity considering
a. The child’s age and educational level
b. Strength of preference
c. Relationship with family members, and
d. Reasons given for child’s decision.
e. Whether the action is an original custody proceeding or a modification action. In re Marriage of Levsen, 510 N.W.2d 892, 894 (Iowa 1993); In re Marriage of Hunt, 476 N.W.2d 99, 101-02 (Iowa 1991).
10. The report and recommendation of the attorney for the child or other independent investigator;
11. Available alternatives; and
12. Any other relevant matter the evidence in a particular case may disclose. [including factors of continuity, stability, and approximation (In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007)) and whether one of the parties has without just cause denied the child the opportunity for maximum continuing contact with the other parent (Iowa Code section 598.41(1)(c)).]
Moral misconduct has also been considered a factor, however, it has been weighed most heavily only in those cases where the misconduct was conducted in the presence of the children. See In re Marriage of Grandinetti, 342 N.W.2d 876, 879 (Iowa App. 1983).
The emotional and environmental stability offered by each parent are important considerations. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa App. 1998).
The parent awarded physical care is required to support the other parent’s relationship with the child. Hansen at 700; Iowa Code section 598.41(5)(b).
A child should be assured the opportunity for the maximum continuing physical and emotional contact with both parents. In re Marriage of Ruden, 509 N.W.2d 494,496 (Iowa App. 1993).
Choice of Child at Age 14
There is a common rumor that upon reaching the age of 14, a child can choose where he/she wants to live. In a modification proceeding, a child’s preference is given less weight than in the initial custody proceeding. Many other factors are also considered.
Based upon your post, it is unlikely that the court will modify the current custody order. However, in Iowa, the Court prefers that the child has contact with both parents. As in your son's case, it sounds like the Court is allowing your granddaughter "baby steps" to allow her to again be a part of your great granddaughter's life.
However, based on your post, it sounds like the court may not be FULLY aware of what is going on with your granddaughter. It is important that your son gets good legal representation.
Finally, you or your son may wish to contact the Iowa State Bar Association's attorney referral service toll free at 1-(NNN) NNN-NNNN
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