Each year in the United States, more and more parents of minor children separate. Many parents view the custody decision as a battle between the adults' preferences. In many states, however, courts must also consider the child's opinion when deciding custody.
This article will explain how a child's preference affects custody in Iowa. If you have additional questions after reading this article, you should consult with an experienced family law attorney.
Whether you're going through a divorce or your separating from your partner, if you have minor children, custody is a topic you'll need to discuss. In Iowa, every custody case involves allocating parental rights and responsibilities to each parent, which begins with the court deciding legal custody and physical care of the child. Legal custody means a parent has legal rights to make decisions for the child. For example, where a child will attend school, what religion the child will practice, and whether the child will undergo necessary surgery. Physical care (sometimes called physical custody) refers to where the child will live and which parent will maintain the home for the child. (Iowa Code § 598.1)
The court can award joint custody to both parents, which means either joint legal custody, joint physical care, or a combination of both. Joint legal custody means that both parents must agree when it comes to significant decisions in the child's life. Joint physical care usually means the child will spend an equal amount of time with both parents.
If the court assigns one parent the sole custodial parent, it will create a parenting time (visitation) schedule so the other parent can exercise liberal visitation with the child. (Iowa Code § 598.41 (1)(a).)
As with most divorce or separation-related issues, it's always best for parents to work together to determine the best custody arrangement for their family. If you agree, you can present a parenting plan to the court, and the judge will sign it. (Iowa Code § 598.41 (4).)
When parents can't agree on their child's custody, the court will need to step in and decide for them. All custody evaluations begin with both parents on equal ground, and the court will not favor either parent because of their age or gender.
To begin, the court must determine what custody arrangement would be in the child's best interest by considering a variety of factors, including each of the following:
Judges have broad discretion when deciding how to allocate custody, and will consider each factor equally.
The court will consider a child's preference if the child is both old enough and mature enough to have a meaningful opinion on custody. There is no set age when the judge will consider the child's preference; each judge determines each child's maturity on a case-by-case basis. However, teenagers are usually old enough to have an opinion the court must consider. Younger children are sometimes more susceptible to pressure from parents or superficial reasons, such as gifts or lax discipline; the opinion of a younger, immature child usually won't factor into the custody decision.
Courts will look at several factors when deciding how much weight to give a child's preference. The judge will consider the strength of the child's preference and whether that preference has wavered. The child's intellectual and emotional make-up also affect the weight of the child's preference. Courts also consider the reasoning behind the opinion. For example, if a son is unhappy in his mother's home and wants to live with his father because he's seeking "greener pastures," the judge won't give as much weight as if he were happy in both homes, but simply has a closer relationship with his father.
Courts don't have to follow a preference when it's not in the child's best interest. In one case, a mother took her son, moved him away from his father, and refused to reveal her address or telephone number to prevent the father from contacting the child. The judge ruled that the child was better off with the father despite the child's stated preference to live with his mother.
The court will also reject the child's opinion if a parent coached the child to state a particular preference. In fact, coaching the child can backfire against that parent in the custody decision. In one case, the court found that a nine-year-old girl's father manipulated her testimony by providing special treats, activities, and telling her that he'd be deeply hurt if he didn't win custody. In this case, the court refused to give custody of the child to the father, despite the daughter's stated preference to live with him.
Iowa judges normally won't require children to testify in court about their custodial preferences. Asking a child to choose between parents can be appropriate in limited circumstances, but it can also be cruel and inappropriate in other situations. Iowa courts believe that asking a child to testify about custodial preferences in front of the parents may cause the child to testify out of fear or based on what the child believes the parents want.
Judges will often interview children in court chambers to determine their custodial preferences. Parents aren't allowed to be present during the in-chambers interviews, but the parents' attorneys may attend. Usually, the judge will ask the child questions, although the attorneys can sometimes suggest questions. A court reporter should also be present to record the interview.
The court can refuse to interview a child if the judge believes the child has enough information about the child's preferences from other sources. For example, in one case, the court noted that the children had changed their opinions multiple times, depending on which parent they were talking to. The judge decided that interviewing the children wouldn't be much help.
Alternatively, the court may discover the child's custodial preference by appointing an expert to meet with the child. Iowa judges can appoint a custody evaluator or a mental health professional to meet with the child and parents separately and put together a report for the court. The report will usually include extensive information about all the factors affecting custody, including the child's preferences. (Iowa Code § 598.12B.)
As children grow up, your custody order may no longer serve their best interests. Although the court favors stability for children, it also understands when modifications may be necessary. Parents can agree to change a custody or visitation order, and the court will approve it. However, like custody, when parents can't agree, the court will need to approve any modification to the orders.
A parent who wishes to change a custody order will need to demonstrate to the court that, since the last order, there is a substantial change in circumstances. If the court believes it will benefit the child to modify custody or visitation, the court will evaluate the same factors used to evaluate an initial custody decision. (Iowa Code § 598.21C.)
If you have additional questions about the effect of children's custodial preferences, contact an Iowa family law attorney for help.