Brian Albert Mahedy v. Amanda Jean Gibson

IN THE COURT OF APPEALS OF IOWA

No. 17-0195
Filed February 21, 2018

BRIAN ALBERT MAHEDY,
Plaintiff-Appellant,

vs.

AMANDA JEAN GIBSON,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Richard B. Clogg,

Judge.

A father appeals the custody order placing his two children in the physical

care of their mother. AFFIRMED.

Scott D. Fisher of Fisher Law Firm, P.L.C., Urbandale, for appellant.

Amanda Jean Gibson, Newton, self-represented appellee.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

Brian Mahedy and Amanda Gibson are the parents of N.G., now eleven

years old, and R.G., now three years old. After Brian brought an action to establish

custody under Iowa Code chapter 600B (2015), the district court granted joint legal

custody and placed physical care with Amanda. On appeal, Brian asks this court

to assign physical care of the children to him.

I. Facts and Prior Proceedings

Brian and Amanda engaged in an on-again-off-again relationship for

several years. N.G. was born in 2006. Although no formal custodial agreement

existed, Brian often exercised informal visitation with N.G. on the weekends.

Amanda had two children from other relationships. Brian and Amanda reunited in

2013 and R.G. was born in 2014. When their relationship ended, the children

remained in Amanda’s care.

Brian sought a formal custodial agreement and filed a petition to establish

custody in August 2015.1 Brian and Amanda completed mediation and agreed on

a temporary custodial arrangement giving Amanda physical care of the children

and granting Brian visitation every other weekend. Initially Brian exercised his

visitation without controversy, but the situation changed when Amanda and the

children moved to Michigan. On March 25, 2016, Amanda requested visitation

stop because of concerning statements made by N.G. about Brian’s treatment of

her and her brother. In April, the district court denied the motion to suspend

1
Paternity, along with child support, was established in a prior proceeding.
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visitation. But visitation did not resume, and Brian brought a contempt action

against Amanda.

After a series of delays, Brian’s custody petition came to trial in October

2016. In addition to Brian, Brian’s mother and sister, and Amanda’s ex-husband

testified in favor of Brian’s petition. Amanda, who did not have an attorney, testified

on her own behalf. The district court issued a written decree granting Amanda

physical care. The court reasoned it was in the children’s best interests to remain

in Amanda’s care given her long history as their primary caregiver. Because of the

geographical distance between parents, Brian was granted visitation on the

second weekend of each month and certain portions of holiday and summer

breaks. The court also ruled on Brian’s contempt motion, concluding Amanda

prohibited visitation on twelve weekends since she moved to Michigan. As a

remedy, the court granted Brian an additional consecutive fourteen days of

visitation during the upcoming summer break. Dissatisfied with the court’s ruling,

Brian appeals and seeks physical care of the children. Amanda did not file a timely

appellee’s brief.

II. Scope and Standard of Review

We review custody proceedings de novo. See Iowa R. App. P. 6.907;

Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988) (noting we use same legal

analysis in custody as dissolution proceedings). But “we give considerable weight

to the sound judgment of the trial court who has had the benefit of hearing and

observing the parties firsthand.” In re Marriage of Kleist, 538 N.W.2d 273, 278

(Iowa 1995).
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Our primary concern is the best interests of N.G. and R.G. See In re

Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). When determining

physical care, we are guided by the factors established in Iowa Code section

598.41(3) and In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).

McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). But because each

family presents its own strengths and challenges, our determination is based on

the circumstances of the instant case. See Kleist, 538 N.W.2d at 276.

III. Analysis

We start with the realization joint physical care will not work in the instant

case. “Although Iowa Code section 598.41(3) does not directly apply to physical

care decisions, we have held that 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.” In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).

Brian and Amanda live in different states and have difficulty communicating

effectively—precluding a joint physical care arrangement. See id. at 698. Because

joint physical care is not appropriate we must grant physical care to one parent

and visitation to the other. In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa

2007).

On appeal, Brian focuses on Amanda’s failure to deliver the children for his

visitation after moving to Michigan. See Iowa Code § 598.41(3)(e) (listing as

consideration “whether each parent can support the other parent’s relationship with

the child”). Brian notes his steady job and stable housing with his mother and her

boyfriend. But at its core, his argument reflects more his instinct to punish Amanda

than a genuine desire to provide the children with a nurturing home life. For
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instance, Brian asserts “Amanda should not be rewarded for unilaterally deciding

to destroy the children’s relationship with their own father.” Custody “is not a matter

of reward or punishment.” In re Marriage of Teepe, 271 N.W.2d 740, 742 (Iowa

1978) (citation omitted). The question is which parent can minister more effectively

to the long-range needs of the children. In re Marriage of Barry, 588 N.W.2d 711,

712 (Iowa Ct. App. 1998).

After reviewing the available record and giving deference to the district

court’s ability to observe both parents, we conclude Amanda is better suited to

serve as primary caretaker. Amanda has served in this role for the entirety of the

children’s lives. See Iowa Code § 598.41(3)(d) (considering parent’s caretaker

role before and after separation when determining physical care). In contrast,

Brian has only tended to the children’s needs in a limited capacity. When asked

how he would manage his work schedule and parenting duties he indicated he

would rely heavily on his family. He also admitted to giving “some thought but not

a lot” to how he would provide daytime care to R.G. during the week.

Granting Amanda physical care also allows N.G. and R.G. to live with their

half-siblings, and “[t]here is a presumption that siblings should not be separated.”2

See In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992) (citing In re Marriage

of Jones, 309 N.W.2d 457, 461 (Iowa 1981)). Amanda provided unrebutted

testimony indicating N.G., in particular, was very close with her half-siblings. We

will not disrupt such a harmonious sibling relationship without compelling reason.

See id.

2
The presumption against separating siblings applies to half-siblings as well. See In re
Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986).
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While Amanda’s failure to abide by the temporary visitation schedule is

troubling, this alone does not sway our conclusion. Both parents have struggled

to put their children’s needs before their personal squabbles. The district court set

out a more feasible visitation schedule than the temporary agreement, making

compliance more realistic. We emphasize both parents must comply with the

provisions of the decree.

IV. Conclusion

For the foregoing reasons, we affirm the district court’s decree granting

Amanda physical care and visitation to Brian.

AFFIRMED.