Although every state’s specific custody laws vary slightly, every court follows a basic blueprint that breaks “custody” into two components: legal and physical. Physical custody is a fancy way of indicating where the child will live, and which parent will be responsible for the child’s daily needs. Parents can share joint physical custody, or the court can name one parent the “custodial” parent in sole physical custody.
Legal custody refers to a parent’s right to make decisions about the child’s health, education, and general welfare. Like physical custody, parents can share legal custody, or one parent can retain the exclusive decision-making authority for the child.
A modern trend hitting family courts today is for a judge to presume that joint custody is in the child’s best interest. Iowa courts follow this new trend, except in cases with a history of domestic violence. In fact, if there’s abuse, there’s a rebuttable presumption (meaning you can overcome it with evidence), that it’s not in the child’s best interest for parents to share custody.
Before awarding joint custody, the judge may require the parents to submit a joint physical care parenting plan which outlines the parent’s procedures for the following:
The hallmark of joint custody is that the parents must be able to communicate, co-parent, and each must nourish the child’s relationship with the other parent. Obviously, if parents are always butting heads about the child, joint custody may not be the best option for the family.
Joint legal custody is so prevalent today that it’s almost standard. When parents share decision-making rights and responsibilities, the children can flourish knowing they have both parents on their side. Courts usually reserve sole legal custody for parents who refuse to communicate, or for parents with a history of abuse or neglect.
On the other hand, joint physical custody is more challenging to maintain, so judges are often hesitant to require the child to bounce between homes. The court will identify one parent (and the parent’s house) as primary, and the other parent will spend time with the child during scheduled visitation.
When the court orders sole physical custody to one parent, the next logical step is for the judge to create a parenting time (visitation) schedule for the noncustodial parent. Iowa law is clear that if there’s only one custodial parent, that person must support the child’s relationship with the other parent. The best way to ensure the child has a constant and meaningful relationship with the noncustodial parent is to provide liberal visitation, which allows the child maximum continued physical and emotional contact with both parents. Parenting time also encourages both parents to share the rights and responsibilities of raising the child.
The most common type of visitation is unsupervised, meaning the child will spend overnights, alternating holidays, and school breaks with the noncustodial parent.
For some families, overnight visitation may not be in the child’s best interest. The court won’t usually place any restrictions on parenting time unless it finds that a parent’s visitation has the potential to cause physical, mental, or emotional harm to the child. If unsupervised parenting time isn’t appropriate, the judge may order supervised visitation, which will take place in a county or state facility with a professional third-party present.
Unlike what Hollywood portrays on primetime television, not all custody cases involve a bright courtroom and feuding parents. Most custody cases settle before the court intervenes, which can save parents time and money. If you and your ex-spouse can communicate, but need direction, you can try to create your parenting plan together, or you can request mediation, which offers parents a confidential and structured environment to work through their issues.
If agreeing isn’t possible, you can ask the judge to decide. In Iowa, judges must consider what’s in the child’s best interest by applying the following factors when determining custody:
It’s no surprise that a child’s sense of stability is at risk during and after a divorce or separation, so custody orders aren’t meant to change unless there’s a reason. If parents agree to modify the current arrangement, the judge will approve the request.
Any parent hoping to modify an existing custody or visitation order must demonstrate that there has been a significant and material change of circumstances since the last order. Typical examples of substantial changes may include one or both parents relocating, remarrying, or a change in the child’s health or education.
In addition to the above requirements, if a noncustodial parent wishes to change the child’s custodial parent, that person must prove to the court that they would be the best custodial parent for the child. If the parent fails to convince the court, or if the court believes that both parents would be appropriate custodial parents, the court will deny the request for modification.
If the court agrees to review your case, the judge will apply the above best interest factors listed above before deciding.