Dear Soc,

[lissa68]

Melissa(lissa68)

Iowa

Regarding HF22, New Joint Custody Law

  HOUSE FILE 22
  1  2
  1  3                             AN ACT
  1  4 RELATING TO THE AWARDING OF JOINT PHYSICAL CARE OF A CHILD.
  1  5
  1  6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  1  7
  1  8    Section 1.  Section 598.41, subsection 5, Code 2003, is
  1  9 amended to read as follows:
  1 10    5.  a.  Joint physical care may be in the best interest of
  1 11 the child, but If joint legal custody does not require is
  1 12 awarded to both parents, the court may award joint physical
  1 13 care.  When the court determines such action would be in the
  1 14 best interest of the child and would preserve the relationship
  1 15 between each parent and the child, joint physical care may be
  1 16 awarded to both joint custodial parents or physical care may
  1 17 be awarded to one joint custodial parent upon the request of
  1 18 either parent.  If the court denies the request for joint
  1 19 physical care, the determination shall be accompanied by
  1 20 specific findings of fact and conclusions of law that the
  1 21 awarding of joint physical care is not in the best interest of
  1 22 the child.
  1 23    b.  If joint physical care is not awarded under paragraph
  1 24 "a", and only one joint custodial parent is awarded physical
  1 25 care, the parent responsible for providing physical care shall
  1 26 support the other parent's relationship with the child.
  1 27 Physical care awarded to one parent does not affect the other
  1 28 parent's rights and responsibilities as a joint legal
  1 29 custodian of the child.  Rights and responsibilities as joint
  1 30 legal custodian of the child include, but are not limited to,
  1 31 equal participation in decisions affecting the child's legal
  1 32 status, medical care, education, extracurricular activities,
  1 33 and religious instruction.


Question:

1.  Is my understanding of this that not only is this for those in the midst of divorce and trying to come to a custody agreement, but Also for those with existing decrees and wanting to modify?


Thanks, Soc as always

Lissa68

[socrateaser]

>1.  Is my understanding of this that not only is this for
>those in the midst of divorce and trying to come to a custody
>agreement, but Also for those with existing decrees and
>wanting to modify?

Before a new custody hearing is held, the moving party must demonstrate a substantial change in circumstances affecting the child's best interests. Once established, any modification that follows must adhere to this new law, UNLESS, the prior order/judgment states that no future change in law shall affect future application of the order/judgment.

FYI, this law that you post is just a bone. It has no meaningful value, because the court retains discretion to determine the amount of joint care for each parent. So, it could be 99/1 and still qualify as joint.

In addition, the court can always just write its rationale out, and satisfy the law's requirements.

There's a galaxy-sized difference between "joint physical custody," and "EQUAL physical custody."

[Kitty C.]

This is info we received shortly after HF22 was signed.  Since Iowa is one of the few states that actually has a definition of BIC, I believe that it does give this law more teeth than previously assumed.  Also, the gov. has also implied that he will require all judges who preside in these cases to get up to speed on the new law, that they be knowledgeable on matters of joint custody.

~~~~~~~~~~~~~~~

Dear Members,
 
More valuable information from Dick Woods about how HF22 will change everything.  You may want to keep this!
 
One misunderstanding about Joint Physical Care in Iowa is as long as " The Best Interest of the Child" is up to a judge, he/she can do whatever they want.

This might be a common misunderstanding among people who generalize from experience of dads who go to court in other states.  The fact is that, in Iowa, "best interest of the child" is NOT "up to a judge"!  It's defined by 598.1 (1) of the Code of Iowa:

1. "Best interest of the child" includes, but is not limited to, the
opportunity for maximum continuous physical and emotional contact
possible with both parents, unless direct physical or significant
emotional harm to the child may result from this contact. Refusal by
one parent to provide this opportunity without just cause shall be
considered harmful to the best interest of the child.

Part of the reason that our referral attorneys are so happy about House File 22 is that judges must state findings of fact and conclusions of law that joint physical care is not in the best interest of the child.  Given that Iowa law defines "best interest of the child as "the opportunity for maximum continuous physical and emotional contact possible with both parents", the judge is required to prove the negative that NOT awarding joint physical care will, somehow, better maximize the child's contact with both parents.  How do you do that?  All but one of the usual legal arguments are irrelevant.  The one which remains is a demonstrated history of domestic abuse, because of the "direct physical harm or significant emotional harm" clause in the definition.


Warmest regards,
Dick

~~~~~~~~~~~~~~~~~~~~

Bottom line:  it looks like the ONLY way a judge could rule against joint custody (if only one parent asks for it) is to prove abuse.  And the type of joint custody would be determined by whichever parent is asking for it.  If we're reading this wrong, would you please clarify?

[lissa68]

Melissa(lissa68)
Kitty, exactly what I was wanting to ask, but my words were not clear enough.

Yes, Soc, clarify please?!


Thanks, Kitty, and Soc,

Lissa68

[socrateaser]

Assuming that the definition of "best interests..." is correct, then I would say that this could make a big difference.

It will almost certainly be up to an appellate court to deal with this issue on appeal, which will probably occur fairly quickly.

The escape route for a judge, at the moment, is the statement, "significant emotional harm to the child." This could be liberally interpreted to mean something to the effect of: Constant relocation of the child between parental residences is presumed to cause significant emotional harm to the child.

And, with one stroke of the pen, the law will be rendered meaningless. I may be stretching, but I'm trying to give you the down side argument.

[antonin]

When the first case is decided that uses this law as its basis and SUBSTANTIALLY EQUAL custody is awarded to both parents becuse of this law, could you please tell us?

[Kitty C.]

Will do, I have a feeling we'll find out right away!  And thanks, Soc, my feelings were the same.