Sunday, September 18, 2005

Case Law Development: No Legislative Preference for Joint Physical Care Arrangements

The Iowa legislature has moved from a position of affirmatively disfavoring joint physical care of children to increasingly favoring the arrangement.  In this case, the Iowa Court of Appeals was asked to interpret the effect of 2004 amendments to the child custody statutes. The court concluded that the legislation did not establish either a preference or presumption for joint physical care, but required only that, upon a parent’s request for joint physical care, the trial court must explain any decision to reject that request in terms of the best interest of the child.  Nonetheless, the court reversed the trial court’s decision here because, though the trial court explained its decision, the court of appeals disagreed with the trial court’s view of the facts. The case is a lovely example of the importance of deference to other institutional decision makers – whether it is a trial court’s deferring to the legislature or an appellate court’s deference (or lack of deference) to a trial court assessments.

Ellis v. Ellis, 2005 Iowa App. LEXIS 1143 (September 14, 2005) Opinion available on web at http://www.judicial.state.ia.us/appeals/opinions/20050914/04-1449.asp (Last visited September 17, 2005 bgf)

The child in this case was nearly two years old.  The couple separated when he was 10-months old and had cooperated in his care.  Mother contended that, while she and Father had been able to share the care of their son fairly equally, she felt that, if there was a disagreement, Father would not give any consideration to her opinion.  The trial court agreed with Mother’s assessment that joint decision-making would not work if the parties disagreed and would lead to more tension and dispute.  The court noted that both parents were caring and competent caregivers, but because Father was a recently recovering alcoholic, the court chose to give primary physical care to Mother with very liberal visitation to Father.

The Court of Appeals disagreed, finding that the trouble the couple had experienced in communication resulted mostly because of the tension of a pending divorce.  The Court of Appeals expressed more confidence that they would be able to manage joint physical care.  The court concluded that this arrangement ”will best assure Paxton the opportunity for the maximum continuing physical and emotional contact with both parents and will best encourage his parents to share the rights and responsibilities of raising him.” 

http://lawprofessors.typepad.com/family_law/2005/09/case_law_develo_27.html

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