IN THE COURT OF APPEALS OF IOWA
No. 14-0196
Filed October 15, 2014
CHRISTOPHER SIVERTSEN,
Petitioner-Appellee,
vs.
ELIZABETH M. ELLS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, Ian K. Thornhill,
Judge.
Elizabeth Ells appeals the district court’s order awarding Christopher
Sivertsen physical care of their child. AFFIRMED.
Joseph D. Ferrentino of Iowa Legal Aid, Dubuque, for appellant.
Geneva L. Williams of Williams Law Office, P.L.L.C., Cedar Rapids, for
appellee.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.
Elizabeth (Liz) Ells appeals the order granting physical care of the parties’
son to Christopher (Chris) Sivertsen. Liz argues the district court should have
awarded her physical care of their child. Because we agree the placement of
physical care with Chris was in the child’s best interest, we affirm.
I. Background Facts and Proceedings.
Chris and Liz are the parents of D.S., born in 2011. Liz has one other
child, born in approximately 2008. That child is placed in the physical care of the
child’s father, with Liz having visitation.
The parents met while working at a club, and they later began a
relationship. They lived together for a short time but separated in 2012. Chris
and Liz never married.
The parties’ relationship prior to their separation was rocky. One time,
while a passenger in Liz’s vehicle, Chris punched the dashboard, causing
damage, because he was angry about her tailgating and texting while driving.
Twice during the relationship, Liz filed allegations of domestic abuse against
Chris. She dismissed the petition in the first matter, but the second matter in
2012 advanced to a contested hearing. Following the hearing, the court found a
domestic assault had occurred, and it issued a domestic abuse protection order.
Around the same time, Chris filed his petition in district court to establish
child custody. Liz answered and requested the parties be granted joint custody
with their child placed in her primary care, with Chris having reasonable
visitation. Liz requested mediation be waived because there was a history of
domestic abuse between the parties, and the court waived mediation. A
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temporary custody order was established thereafter, and it continued the shared-
care arrangement the parties’ had begun after separating, alternating care of the
child weekly.
Trial commenced in November 2013. There, Chris said he would be
“okay” with shared care of the child until the child started school, but his
preference was that he have immediate primary care of the child, with Liz having
visitation. Liz said she would like to have full custody, but she felt the child would
benefit from parties’ continued shared care until the child started school, at which
time she wanted the child placed in her primary care. Chris admitted he had
punched Liz’s dashboard out of frustration, but he denied any physical abuse.
Additionally, there were allegations Liz had abused alcohol or substances during
their relationship, and Liz admitted she had had some issues while working at the
club. Liz testified she did not, at the time of trial, have any issues with illegal
drugs, and she only consumed alcohol once in a while.
At the time of trial, both parties had gained full-time employment
elsewhere, with Chris working at an auto parts store and Liz at a prescription-
processing center and a beauty supply store. The parties were communicating
at the time of trial, the protection order having expired, and they were doing a
good job keeping each other updated. Both parties generally testified the other
parent loves their child; however, Chris was more critical of Liz’s parenting,
claiming she had a wonderful heart but was short on patience. Liz denied his
assessment, and she asserted she had been the child’s primary caregiver until
the parents separated, noting she had taken him to the doctor more times than
Chris but conceding Chris was employed full-time at that time. She testified she
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was concerned about Chris’s abuse and objectification of women, but she felt
their child would benefit most from having both parents in his life as much as
possible.
Following trial, the court entered its order, noting it had “received evidence
from both parties on the abuse issue,” and it concluded both parties were
“‘overstating’ their respective positions.” The court was therefore “not convinced,
by a preponderance of evidence, the alleged physical abuse of Liz by Chris took
place,” though it believed “the relationship between the parties was contentious
during the time they were romantically involved.” However, the court found the
parties had matured and grown as parents since their separation, resulting “in the
parties’ ability to communicate and work together in the best interest of [their
child].” The court further found:
Both parties love [their child] and have a strong and positive
connection to him. Both parties have suitable housing for [their
child] and are able to provide for his basic needs. All the evidence
presented at trial suggests [their child] is growing and developing
on schedule with his peers, is a happy child, is in good health, and
loves both his parents. While each party has minor criticisms of the
other’s parenting style, neither voiced serious concern for [their
child’s] well-being while in the other’s custody outside of a diaper
rash issue raised by Chris. Considering the totality of the evidence,
the court finds both parties are fully capable of caring for [their
child].
After reviewing the relevant statutory factors and case law, the court concluded
Liz’s proposal that the parties have joint physical care of their child until he began
attending elementary school was in the child’s best interests, and the court
continued the alternating weekly schedule set forth in the temporary custody
order. However, due to the parties’ geographic distance, the court concluded
joint physical care was not workable once the child began attending school.
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Finding that “both parties are equally able to provide for [the child’s] physical
care” and noting it was a close call, it determined the balance tipped in favor of
Chris because “he has been the more stable parent for a longer period of time
and has provided [the child] with a consistent home since his birth.” The court
awarded Chris primary physical care of the child beginning August 1 of the year
the child enters kindergarten.
Liz now appeals.
II. Discussion.
We review de novo decisions on child custody. In re Marriage of Hynick,
727 N.W.2d 575, 577 (Iowa 2007). We have a duty to examine the entire record
and adjudicate anew rights on the issues properly presented. In re Marriage of
Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Despite our de novo
review, we give strong consideration to the district court’s fact findings, especially
with regard to witness credibility. Hynick, 727 N.W.2d at 577.
In matters of child custody, the first and foremost consideration “is the best
interest of the child involved.” In re Marriage of Weidner, 338 N.W.2d 351, 356
(Iowa 1983); see also Iowa R. App. P. 6.904(3)(o). The Iowa Code provides a
nonexclusive list of factors to be considered in determining a custodial
arrangement that is in the best interest of a child. Iowa Code § 598.41(3) (2013);
In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). We also look to the
non-exclusive considerations articulated in In re Marriage of Winter, 223 N.W.2d
165, 166-67 (Iowa 1974) (including the needs of the child, the characteristics of
the parents, the relationship between the child and each parent, and the stability
and wholesomeness of the proposed environment). The goal is to assure the
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child “the opportunity for the maximum continuing physical and emotional contact
with both parents after the parents have separated or dissolved the marriage.”
Iowa Code § 598.41(1)(a). We seek to place the child in the environment “most
likely to bring [the child] to health, both physically and mentally, and to social
maturity.” Hansen, 733 N.W.2d at 695.
On appeal, Liz argues the district court erred in finding the balance tipped
toward Chris having physical care of the child when he begins school. Liz
emphasizes Chris’s history of domestic abuse, and she points to the entry of the
protective order after another court found there had been domestic abuse by
Chris. She takes issue with the custody court’s finding “that the same allegations
of domestic abuse were not established by a preponderance of the evidence,”
and she argues the principles of issue preclusion prevent the court from revisiting
the domestic abuse issue. Reviewing the record de novo, even if the custody
court should have found Liz had already established an incidence of domestic
violence perpetrated by Chris by way of the other court’s earlier ruling and entry
of a protective order, we cannot say this supports reversal of the court’s ruling,
considering all of the applicable factors and the child’s best interests.
It is true that domestic abuse is a substantial factor in determining
custody. Iowa Code section 598.41(3) (2013) sets forth several factors for the
court to consider in making an award of physical care, including whether a history
of domestic abuse exists. See Iowa Code § 598.41(3)(j). This is because
domestic abuse has “ravaging and long-term consequences” on children. In re
Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa Ct. App. 1997). In interpreting
what is sufficient to constitute a “history of domestic abuse,” the supreme court
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has held a “history” is not necessarily established by a single documented
incident. In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). Nor does
more than one minor incident automatically establish a “history of domestic
abuse.” Id. Although evidence of domestic abuse creates a rebuttable
presumption against an award of custody, see In re Marriage of Ford, 563
N.W.2d 629, 632 (Iowa 1997), it is for the court to weigh the evidence of
domestic abuse, its nature, severity, repetition, and to whom directed, not just to
be a counter of numbers. Forbes, 570 N.W.2d at 760. We are mindful the
district court had the benefit of hearing and observing the parties first-hand and
therefore give considerable weight to its judgment. Id. at 759.
Here, the district court clearly weighed the evidence of domestic abuse,
along with its nature, severity, repetition, and to whom directed, and it found,
after hearing the witnesses first-hand, the parties had “overstated” the
allegations. We give strong consideration to the district court’s fact findings,
especially with regard to witness credibility. Hynick, 727 N.W.2d at 577. This is
not to say we take domestic abuse lightly, because “domestic abuse reflects the
ability of the parties to listen to one another and respect one another’s opinions
and feelings.” Id. at 579. However, the parties have moved on now, and the
child is currently in the parties’ joint physical care. Liz herself testified she
believed joint physical care is in the child’s best interests, which ordinarily
negates the court’s need to consider the factors set forth in section 598.41(3). Id.
(citing Iowa Code § 598.41(4)).
Upon our de novo review of the record and considering the factors
pertinent to physical care, we find no reason to disturb the district court’s award
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of physical care of the parties’ child to Chris. The record shows there has been
improved communication on the part of both parents, and this court expects the
parties will follow through with the current court-ordered parenting schedule and
facilitate a healthy and nurturing environment for their child. It is time for the
parents to put their child first and work together as grownups for the best
interests of everyone, and we trust they understand the importance of showing
respect for one another as they embark on many years of joint parenting. We
affirm the physical care decision of the district court. Costs on appeal are
assessed to Liz.
AFFIRMED.