Iowa child custody attorneys provide answers to frequently asked questions with regards to Iowa child custody laws.
Who will get custody of our child(ren)?
This depends on a number of factors, which can be summed up with the “best interests of the child(ren).”
These factors can include, but are not limited to:
1. Award of the residence.
2. Who has been the primary caregiver of the child(ren) or has it been shared?
3. Are there any material issues that affect a parent’s ability to care for children (uncontrolled mental health issues which present a danger to the child(ren), drugs, alcohol abuse, physical abuse, etc.)?
4. Has one party proven they are unable to foster the relationship between the child(ren) and the other parent?
Much of this information, and facts to support the same, are not in Iowa Code, but rather in case law, which your family law attorney will likely discuss with you.
What is joint custody? What is sole custody?
“Custody” is divided into two parts.
Legal custody is the ability to make decisions regarding the children beyond the “day to day” care. This includes doctor appointments, education decisions, extracurricular activities, etc.
Joint legal custody requires both parties to consult and attempt to come to a resolution regarding the legal decisions. Sole legal custody allows only one party to make these decisions.
“Physical care” is basically the amount of time a parent has the minor child, in the term of “overnight” visitations, and the maintenance of the residence for the minor child. This is often termed “physical custody.”
Shared physical care in Iowa essentially, and very basically, means the parties share equal time with the child (ren) and equal responsibility. In essence, it could be 182.5 days for each party, or it could be any amount of parenting time the parties agree upon.
Primary physical care, also known as “sole physical custody” means one party serves as the primary residence of the child(ren) and the other parent has some award of visitation with the child(ren), or possibly no visitation. An award of physical care does not affect either parent’s rights and/or responsibilities of legal care.
If both parents share custody does anyone pay child support?
Child support is determined by the Iowa Child Support Guidelines and the answer is likely yes.
Unless both parties can show why to deviate from the child support guidelines, the answer will definitely be yes.
Can a parent refuse to allow visitation if child support is not paid?
No. Child support and visitation are wholly separate issues.
At what age can my child decide which parent to live with?
There is no rule or law on this. A material change of circumstance must be found by the court to change custody/visitation, and for a child to express their opinion, the court must find that it is a sound reason.
What is a parenting plan, and do I need one?
A parenting plan is a division of the rights and responsibilities of the parents in a divorce or paternity action. Although you do not need a document specifically titled “parenting plan,” something similar must be incorporated into any final agreement.
If my separation agreement includes child custody or child support orders can it be included in the divorce decree?
Yes, you can reference and attach the documentation outlining the entirety of the agreement in a final decree.
What can I expect from temporary orders?
Temporary orders can include, but are not limited to, custody, visitation, child support, division of children’s expenses and expenses of the parties, health insurance, use of the marital residence, mutual restraining orders, orders regarding the sale of personal property, and even tax filing status.
When will child custody be decided?
This can be decided at a temporary hearing and/or a final hearing/trial.
When can I modify custody?
At any point a “material and substantial change” of circumstances exists. This must be material to the custody and not contemplated in the prior Decree/Order.
What if we cannot agree on a custody arrangement?
If you cannot agree, and mediation has failed, trial is the final option.
What is an ex parte order?
This is an order applied for, and heard, without the other party present. This is typically synonymous with “emergency” order.
One must prove that serious harm will result without the entry of the order. A hearing is held after the entry of the order to see if the order should remain in place.
How can I increase my chances at getting a larger custody arrangement?
The primary part the court looks at is the historical relationship between the children and their parent. Do not give up time with your children and do not settle for every other weekend.
You both have equal rights to your children so no one parent can dictate what time the other receives. Take the “high road;” do not bad mouth the other parent. Keep communication lines open. Encourage the relationship with the other parent and the child.
What is visitation?
Visitation is the right to see your child/children during specific times.
Can a judge order supervised visitation or no visitation?
Yes, dependent on the circumstances.
Do courts favor the mother over the father?
The courts are supposed to look at the “best interests of the child” and not gender. However, we are dealing with the human element.
In Iowa, the presumption is joint custody. However, the parties can thereafter prove that it is not in the best interests of the child to have such a presumption applied.
What should I know before a custody trial?
Consult legal counsel. Make sure you have been open and honest with your attorney.
Make sure you have pleadings reflecting your requests and evidence reflecting all items you want the court to take into account.
Can I collect my own evidence to use if my custody case goes to court?
Yes, however, make sure you know what is admissible and what is not. Know how to overcome objections.
In addition, make sure you have not broken any laws in obtaining such evidence, including recording conversations over state lines.
Do I need to use a Guardian ad Litem/Custody Evaluator?
Not necessarily. Sometimes the cost is prohibitive.
The court may appoint one at their own motion or the motion of either party. Many cases do not have such a person appointed.
GALs and evaluations can cost thousands of dollars depending on the case and time involved.
Will my child need to appear in court?
Not necessarily. No attorney wants a child exposed to the proceedings, but sometimes it is absolutely necessary depending on the circumstances.
Can a parent change the child’s last name without the other parent’s permission?
According to the State of Iowa: “If the child is fourteen years of age or older, you must provide the child’s written consent to the name change. If the child is under fourteen years old, both parents named on the birth certificate must file their written consent to the name change.
If one parent does not consent, the court will set a hearing. At the hearing, the court may waive the need for both parents’ consent if it finds one of the following:
- The parent has abandoned the child.
- The parent has failed, without good cause, to support the child or contribute financially for the child’s birth.
- The parent does not object to the name change after receiving proper notice.”