Monday, January 23, 2006

Case Law Development: Losing Custody When Mothers Flee with Children

Members of the Iowa Court of Appeals disagreed on how to evaluate evidence in a custody case involving unmarried parents. 

The trial court had granted primary custody to Mother, based primarily on the fact that she had been the child's primary caretaker and would be able to spend more time with child than Father, whose 12-hour-a-day job as a construction manager would not allow him much time with child.

The majority reversed this decision because Mother had taken son and moved to Oregon without informing Father for some months.  "While [Mother] was undeniably [child's] primary caretaker when the parties lived together,  she remained his primary caretaker after that point only because she absconded with him. We conclude her decision to conceal her whereabouts from Michael and to deprive him of access to the child for several months overrides any preference she should receive in the physical care determination based on her role as primary caretaker."  The majority was also concerned regarding Mother's ongoing struggle with substance abuse, though the trial court had found that there was no evidence that Mother had not properly cared for son.

The dissent would have afforded greater deference to the trial court's decision, particularly to the evidence that Mother had fled with the child, at least in part, because of Father's physical violence toward her. The dissent was also concerned that the court of appeals had not considered the evidence presented to the trial court by experts that a change in custody to father could present attachment problems for the child.

The case presents yet another example of the extent to which the child custody balance sometimes turns on subtle preferences and assumptions regarding the needs of children and the ability of parents to meet those needs.

Mitchell v. Lane, 2006 Iowa App. LEXIS 48 (January 19, 2006)
Opinion available on the web (last visited January 22, 2006

http://lawprofessors.typepad.com/family_law/2006/01/case_law_develo_25.html

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