IN THE COURT OF APPEALS OF IOWA
No. 16-0350
Filed November 23, 2016
Upon the Petition of
JAUN-PAUL LEE BANNISTER,
Petitioner-Appellee,
And Concerning
AMBER DAWN BUBAN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Randy S.
DeGeest, Judge.
A mother appeals the district court decision granting the father physical
care of the parties’ child. AFFIRMED.
Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, L.L.P.,
Marshalltown, for appellant.
Philip J. De Koster of De Koster & De Koster, P.L.L.C., Hull, and Diane
Crookham-Johnson of Crookham-Johnson Law Office, P.L.L.C., Oskaloosa, for
appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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BOWER, Judge.
Amber Buban appeals the district court decision granting Jaun-Paul
Bannister physical care of the parties’ child, A.B. We agree with the district
court’s finding the child’s best interests are served by granting Jaun-Paul
physical care of the child. We affirm.
I. Background Facts and Proceedings
Amber Buban and Jaun-Paul Bannister began their relationship in 2008
and it was tumultuous from the beginning. Amber became pregnant shortly after
the relationship began, and she and her child, H.B., moved in with Jaun-Paul.
Before A.B. was born in 2009, the couple had broken up and reconciled, though
Amber was still living apart from Jaun-Paul. The relationship was on and off, the
couple lived apart occasionally, and shared custody and care of A.B. In 2012,
the parties separated permanently. Jaun-Paul then took a job in Oskaloosa,
while Amber remained with A.B. in Grinnell.
Visitation issues began to increase and cause friction. During this time
Jaun-Paul remained active in A.B.’s life, attending t-ball and wrestling practices
and events regularly, even though he lived forty miles away. A civil protection
order was filed against Jaun-Paul because of a threat he made after Amber’s
boyfriend had spanked A.B. Subsequent testimony on this issue showed at least
part of Amber’s motivation for asking for the civil protective order was a “free”
custody review. A no-contact order was entered and a visitation schedule
granting alternate weeks to the parents was established. The order expired in
January of 2015.
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Tensions continued to rise concerning kindergarten. Amber and Jaun-
Paul registered A.B. for school in Grinnell and Oskaloosa respectively. Amber
claims no agreement had been made concerning where A.B. would attend
school, and she registered him to continue classes in Grinnell. Jaun-Paul claims
Amber agreed to enroll A.B. in Oskaloosa in exchange for enrolling him in
Grinnell for preschool.
In May an incident occurred indicating A.B. may have sexually abused an
unrelated child in Amber’s care and may have been sexually abused by his
half-brother, Jaun-Paul’s son. This increased tension between Amber and Jaun-
Paul even further. An investigation was conducted which concluded no sexual
abuse had occurred. Jaun-Paul employed a counselor for A.B., Jane Kelderman,
a family friend and licensed social worker, in order to help A.B. deal with the
stress of the investigation.
Jaun-Paul filed a petition for custody in April and mediation was conducted
in June. A.B. was to be in Jaun-Paul’s care every other week through the
duration of the summer, until trial could be held to determine physical care. The
trial could not be scheduled before school began and a temporary custody order
was issued which granted physical care to Jaun-Paul. As a result, A.B. began
kindergarten in Oskaloosa.
The parents have continued to argue over matters surrounding A.B.’s
custody, such as the location of exchange of the child and flexibility in
scheduling. The trial was held over two days, January 7 and 14, 2016. The
district court entered its decree awarding joint legal custody, with physical care to
Jaun-Paul. Amber was also required to pay child support. Amber appeals.
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II. Standard of Review
Our review of equitable actions is de novo. Iowa R. Civ. P. 6.907. We
examine the record and adjudicate the rights of the parties anew. In re Marriage
of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). We recognize the
district court’s unique opportunity to hear the evidence and view the witnesses
and so defer to its determinations of credibility. In re Marriage of Brown, 487
N.W.2d 331, 332 (Iowa 1992).
III. Best Interests of the Child
A non-exclusive list of factors has been set out by our supreme court and
used to determine the best interests of the child when deciding physical care. In
re Marriage of Winter, 223 N.W.2d 165 (Iowa 1974). We also consider portions
of the Iowa Code. In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).
(“Although Iowa Code section 598.41(3) [(2015)] does not directly apply to
physical care decisions, we have held the factors listed here as well as other
facts and circumstances are relevant in determining whether joint physical care is
in the best interest of the child.”). We apply these factors no matter the martial
status of the parents. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). We also
note “[t]here is no preference for mothers over fathers, or vice versa.” Hansen,
733 N.W.2d at 696.
A. Expert Witnesses
Both Amber and Jaun-Paul focus a great deal of their argument on the
expert witnesses presented at trial. In its findings of fact and conclusions of law,
the district court found Amber’s expert’s testimony and report was “not a
complete and neutral report as the preparer of the report did not meet with Jaun-
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Paul, nor is the Court convinced the testing was neutral.” Amber’s expert
testified he had invited Jaun-Paul to be present at A.B.’s testing. However, it is
unclear if Jaun-Paul understood or was given clear instructions of what was
needed of him. Jaun-Paul testified he had been contacted and asked for records
regarding A.B.’s counseling with Kelderman but had not been given other
instructions. There was some evidence presented that the test results would not
be affected by Jaun-Paul’s failure to attend, but we agree with the district court
the test results are suspect. However, we do give some weight to the
conclusions of the report.
Jaun-Paul’s expert, Kelderman, has been a long-time friend of his wife
and attended their wedding. Kelderman also served as A.B.’s counselor after a
particularly troubling incident. Kelderman submitted a report for the temporary
hearing recommending Jaun-Paul be granted custody, without disclosing the
nature of her personal relationship with the family. However, at trial Kelderman’s
bias was effectively disclosed to the district court. Kelderman also conceded she
was unable to make an objective recommendation to the court regarding physical
care. The district court made no mention of Kelderman’s testimony in its ruling.
We find Kelderman’s bias is too strong to allow us to give any weight to her
recommendation regarding physical care. We have only considered her
testimony regarding the counseling services she provided to A.B..
B. Best Interests Factors
Before determining what physical care arrangement is in the best interests
of A.B. we first note, in agreement with the district court, that A.B. consistently
attempts to please both parents. However, not inspired by their child’s example,
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both parents have demonstrated an inability to consistently place A.B.’s best
interests and happiness above their own disagreements. Both have attempted to
manipulate or deny visitation to punish the other parent in the past.
Notwithstanding the parent’s behavior toward each other, both parents have
proven themselves capable and willing to provide for A.B.’s needs and care.
We also agree with the district court in finding both parents present
concerns for A.B.’s custody. Amber has not always shown good judgment in
those she associates with and exposes A.B. to, including Amber’s sister, who
used drugs and attempted suicide in the home while A.B. was present. Jaun-
Paul has displayed some inability to control his emotions. He has also been
involved in two instances of domestic assault. There are some mitigating factors
concerning the domestic assaults. The first incident occurred in 1996 and was
described by Jaun-Paul’s ex-wife, the victim, as “not a big deal.” She did not call
the authorities and charges were brought only after hospital staff were required to
report it. The second instance, against Amber, resulted in a protective order and
centered on an argument about custody and involved no physical assault. None
of these failings precludes either parent from care but they do influence our
decision.
Amber claims Jaun-Paul has not supported her relationship with A.B. by
refusing to allow early pick-up for weekend visits and requiring Amber to pick-up
A.B. at the YMCA near Jaun-Paul’s house instead of at his residence. Jaun-Paul
has been documented confronting Amber, and those with her, during the pick-
ups as well as making rude gestures. Jaun-Paul’s inflexibility in scheduling and
behavior during pick-ups shows a tendency to increase conflict between the
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parties which undermines the relationship between A.B. and Amber and must be
taken into account when considering physical care. We do not find Jaun-Paul’s
insistence on a neutral meeting location to be inappropriate. Jaun-Paul is
demonstrating reasonable concern by using a neutral location considering the
history of conflict between the parties. Jaun-Paul also has a large support group
in the Oskaloosa area.
Amber further claims it is in A.B.’s best interest to remain with his half-
sibling, H.B., and therefore in Amber’s care. Iowa courts have recognized the
importance of a relationship between siblings and included it as a factor for
consideration in determining physical care. Winter, 223 N.W.2d at 166.
Testimony at trial was contradictory relating to the relationship between H.B. and
A.B. Amber testified H.B. and A.B. get along well and miss each other. Jaun-
Paul presented testimony A.B. feels picked on by H.B. and the other children in
Amber’s house, and he plays in his room alone. While A.B. also has a half-
sibling, as well as step-siblings through Jaun-Paul, the half-sibling does not live
with Jaun-Paul. This factor weighs in Amber’s favor.
While both parents are capable of serving as the sole provider of physical
care, we find Jaun-Paul has demonstrated a stronger commitment to A.B.’s best
interests, greater stability in routine and relationships, a continuity of care, and
ability to focus on A.B. Amber has been a good mother to A.B. but has elected
not to exercise her mid-week visitation due to her inability to balance her
obligations with her daughter, her boyfriend, and his children. While her
dedication to her daughter and family are laudable, being unable to prioritize and
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exercise this visitation shows a lack of commitment to A.B.’s best interests.1
Additionally, the weight of testimony showed Amber’s home is less routine based
and more chaotic. This environment negatively affects A.B.’s behavior and
development.
Therefore, we affirm the decision of the district court.
AFFIRMED.
1
The record notes that in a four-month period, Amber exercised mid-week visitation on
one occasion.