When a parent is getting divorced from their spouse, one of the first questions I’m asked relates to the care and custody of the children. With a divorce comes the unavoidable change in care and custody arrangements as it relates to the couple’s children. Most parents are very concerned with preserving as much time with their children as possible. As a result, one of the major requests of a client is to get joint or shared physical care. Joint or shared physical care describes an arrangement where both parents share parenting time with the child, maintain homes for the child, provide routine care for the child, and have equal parenting rights and responsibilities (Iowa Code § 598.1(4).
Generally speaking, the Courts primary concern is “the best interest of the child.” This reasoning extends to issues involving custody and visitation as well. However, the Courts have provided additional guidance when determining if shared or joint physical care is appropriate. In Iowa there is no presumption that joint or shared physical care is best; although if one parent requests it, the Court must consider the request and explain why joint or shared physical care would not be in the child or children’s best interest.
In Iowa, the Court will look to Iowa Code Section 598.41(3), and the list of factors outlined therein, to make a determination regarding the physical care of the child. The factors discussed in this section include:
- Whether each parent would be a suitable custodian for the child.
- Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.
- Whether the parents can communicate with each other regarding the child's needs.
- Whether both parents have actively cared for the child before and since the separation.
- Whether each parent can support the other parent's relationship with the child.
- Whether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity.
- Whether one or both the parents agree or are opposed to joint custody.
- The geographic proximity of the parents.
- Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.
- Whether a history of domestic abuse is present
Furthermore, when making a determination as to joint or shared physical care the Court will evaluate (1) the historical care giving arrangement for the child between the parties; (2) the parents’ ability to communicate and show mutual respect; (3) the degree of conflict between the parents; and (4) the similarities and differences between the parents’ approach to daily routine care of the child. See Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007).
The Court’s ultimate determination as to the custody arrangement will depend largely on the facts and circumstances of a given situation. Often times those facts and circumstances will not support an award of joint or shared physical care. For example, if tensions are still running incredibly high between the divorcing spouses, and they cannot communicate or work together effectively on any matters, the likelihood of the Court awarding joint or shared physical care is virtually non-existent.
If you want to place yourself in the best possible position to enter into a joint or shared physical care arrangement following your divorce, the best course of action is to positively and productively engage with your spouse to address matters related to the care and custody of your children.