What are the main types of custody in Iowa?
There are two basic types of child custody - legal custody and physical care (also called physical custody).
What is legal custody?
Legal custody is the right to ask questions about, and make decisions about important matters concerning, children. Legal custody is also the right to access information about the child to help make decisions. If a court awards joint legal custody, each parent has an equal right to participate in decision-making about the child's education, health care, religious instruction, and other similar issues. Joint legal custody is common. The alternative is sole legal custody, which is often ordered when the parents cannot communicate well or when it may be dangerous for them to communicate. Sole legal custody means only one parent has the right to make these decisions.
What does a court consider in awarding sole custody?
A court will make a determination of what is in the best interest of the child. When making this determination the court can consider these things (among others) to decide on sole custody:
- A parent’s mental health and how that affects the children
- A parent's substance abuse (alcohol or drugs)
- A parent’s violent or abusive behavior
- A parent’s behavior that may be bad for the child
- A history of domestic abuse in the relationship of the parents.
What is physical care?
If a parent has legal custody rights, it does not necessarily mean that the parent has the right to have the child live with them. The court must decide, as a separate issue, physical care - which parent the child will live with. It is possible for a court to award both parents joint physical care.
What is primary physical care?
Primary physical care is the kind of "custody" people typically think about in divorce and custody cases. The parent with primary physical care has the child living with them most of the time. The other parent generally has visitation rights with the child.
If the court decides that one parent will get primary physical care, how does the court decide which parent it will be?
The court looks at many factors in deciding who will have primary physical care. It is hard to say which factors are most important to the court. The factors the court looks at are:
- Facts about the child such as the age, maturity, mental and physical health.
- Needs of the child such as emotional, social, moral, material and educational needs.
- Facts about each parent including age, stability, mental and physical health, and character.
- The interest and ability of each parent to provide for all of the needs of the child.
- The relationship between each parent and the child.
- The relationship between the child and any brothers or sisters of the family.
- The effect on the child if the court continues or changes the custody arrangement.
- The home environment that the child will be living in.
- The court may look at whether one party moves frequently from one home to another, while the other party has lived at the same place for a longer time.
- Where the child wants to live. The importance the court gives this fact depends on how old and mature the child is.
- Recommendation of an independent person who investigated both parties about who should get primary physical care,
- Recommendation of an attorney representing the child.
- Any other options available for physical care.
- If awarding custody to one parent would separate siblings.
- Any other important information that was given to the court.
So, what is joint physical care?
Joint physical care generally means that the child will live with each parent about half the time. Each parent has the right and responsibility to provide a home and routine care for the child when the child is living with them.
How might parents end up with a joint physical care arrangement?
The parents could agree to joint physical care. Even if the parents do not agree to joint physical care, the court may still order it. The court is always supposed to make decisions that are in the best interests of the child. Case law states the court will look at the following to determine whether joint physical care should be awarded:
Continuity:In most cases, the court says, it is probably best if whichever parent (or parents) spent the most time raising the children before the separation continues to do so after the separation. If both parents were spending about the same time parenting the children then joint physical custody may be appropriate.
Communication; When the parents have joint physical care, they must coordinate their lives carefully to make sure the children have everything they need. Therefore, the court will evaluate whether the parties can communicate to determine if joint physical care is approptiate.
Conflict: If the parents are unable to work together without getting into fights, joint physical care probably won't work.
Agreement: For joint physical care to be appropriate the parents must have similar parenting ideas. It is not necessary that both parents agree on every single thing, but both must be "generally operating from the same page."
What is a joint physical care parenting plan?
Sometimes the court wants to know how the parents plan to carry out joint physical care. Then the court may require the parents to submit a proposed joint physical care parenting plan. This plan is supposed to show things like how the parents will make decisions affecting the child, how the parents will each provide a home for the child, how the child's time will be divided between the parents, and how each parent will help the child spend time with the other parent. It would also explain how the child's expenses will be paid for and how the parents will resolve major issues affecting the child. The court may want the parents to talk about other things in the joint physical care parenting plan.
How does joint physical care affect child support?
When the court orders joint physical care child support may still be ordered. The parent who earns more may still have to help support the children by paying the other parent child support. When there is joint physical care the parent paying support pays less than they would have paid if the other parent had primary care of the children.
Iowa Legal Aid provides help to low-income Iowans.
- To apply for help from Iowa Legal Aid:call 800-532-1275.
- Iowans age 60 and over, call 800-992-8161 or
- apply online at iowalegalaid.org
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” on the Iowa State Bar Association website iowabar.org. A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
*As you read this information, remember this article is not a substitute for legal advice.