In re the Marriage of McCusker

IN THE COURT OF APPEALS OF IOWA

No. 21-1021
Filed March 30, 2022

IN RE THE MARRIAGE OF ADAM J. MCCUSKER
AND SARA A. MCCUSKER

Upon the Petition of
ADAM J. MCCUSKER,
Petitioner-Appellee,

And Concerning
SARA A. MCCUSKER,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Alan Heavens,

Judge.

Sara McCusker appeals the physical care provisions of the decree

dissolving her marriage to Adam McCusker. AFFIRMED.

Thomas J. Viner of Viner Law Firm P.C., Cedar Rapids, for appellant.

Andrew B. Howie and James R. Hinchliff of Shindler, Anderson, Goplerud

& Weese, P.C., West Des Moines, for appellee.

Considered by May, P.J., and Schumacher and Badding, JJ.
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BADDING, Judge.

In the words of the district court, “this case is not about a good parent or a

bad parent; rather, it’s about two excellent parents”—Adam and Sara McCusker.

After the breakup of their marriage, each moved away from the town where the

family had been residing. While their divorce was pending, the district court

implemented a temporary joint physical care arrangement that allowed the parties’

two young children to continue attending their same school and daycare. Sara

sought to maintain that arrangement but, because of the distance between the

parties, the court found it unworkable in the long run and placed the children in

Adam’s physical care. Sara appeals, challenging the court’s denial of her requests

for joint physical care or physical care of the children.

I. Background Facts and Proceedings

When Adam and Sara were still dating, they purchased a home together in

Monticello and moved there in 2007. They married five years later. Their first child

was born in 2014, and their second came alone in 2017.

In early 2020, the parties decided to end their marriage. Sara moved out of

the marital home in Monticello and into the home of her boyfriend, Andy. He lives

roughly thirty minutes from Monticello. Even after leaving the family home, Sara

still spent a significant amount of time there to help with the children because Adam

was pursuing an accounting degree. She also felt it was important “[t]o show the

kids that we were still going to always put them first and do what’s best for them.”

Adam filed a petition to dissolve the parties’ marriage in May. Each

requested physical care of the children. The parties sold their home in Monticello

in September, and Adam moved in with his now fiancée, Jenelle. She lives about
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one hour away from Monticello. Jenelle has two children of her own, aged nine

and twelve, who live with her part-time. According to Jenelle, her children became

“almost like instant” siblings with the parties’ children. Sara’s significant other,

Andy, also has a child of his own. Like Jenelle’s children, Andy’s daughter has a

good relationship with the parties’ children, but she was planning to leave Andy’s

home in the fall to attend college.

After the home in Monticello was sold, the district court entered a temporary

order placing the children in the parties’ joint physical care. Although the court

directed the parties to care for the children “on a 4-day rotation,” the parties agreed

to alternate caring for them on a weekly basis. At the time, the older child was in

kindergarten at a private school in Monticello. And the younger child was attending

daycare in Monticello but set to start preschool the next fall. The parties

temporarily agreed the children would continue attending their school and daycare

in Monticello, with each transporting them there during their parenting time. While

in Sara’s care that meant a one-hour roundtrip for the children every weekday,

which increased to a two-hour roundtrip when in Adam’s care.

At the time of trial in May 2021, Adam was thirty-eight years old. He recently

obtained a new job where he works from 9:00 a.m. to 5:00 p.m. His home with

Jenelle is about five minutes away from their town’s elementary school. Sara is

also thirty-eight years old. She works from 7:00 a.m. to 2:00 p.m. or 3:00 p.m.

about ten minutes away from her new home with Andy. Her home is also close to

her new town’s elementary schools, which include both public and private options,

though Sara preferred that the children attend a private school.
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By all accounts, Adam and Sara are model parents. Their homes are

suitable for the children, they communicate well with one another, and they can,

for the most part, effectively co-parent. For instance, they worked with one another

to allow the older child to participate in tee-ball in Monticello while awaiting trial.

And they agreed to wait to send the younger child to preschool due to potty-training

issues. Unlike many cases that come before this court, the text messages

between the parties were cooperative and respectful, showing a willingness on

both sides to give the other parent time with the children.

Yet the parties differed in one fundamental aspect—they could not agree

on where the children should attend school once their divorce became final. Sara

wanted to continue the temporary joint physical care arrangement and have the

children remain at their school and daycare in Monticello. She explained: “My

children are doing well. They’re thriving. They’re happy. They’re healthy. I don’t

want to upset that apple cart.” Alternatively, she requested physical care of the

children. If that request was granted, Sara proposed keeping the children at their

school and daycare in Monticello or moving them to a school in her new town.

Adam, on the other hand, wanted the children to live with him and attend

school in his new town. He felt that it did not make sense to have the children

attend school in a town where neither parent lived. Adam was concerned not only

with eventual afterschool activities but also with the travel time, potential weather

issues, and emergencies. He was also worried about the social aspect of the

children going to a school in a town where they don’t live, explaining: “[I]t’s a

hardship on the kids because . . . people they know in school aren’t going to be

the same people they know where they live, so they won’t be able to have, you
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know, friends, structure.” The deciding factor for the district court in evaluating

Sara’s request for joint physical care was the parties’ disagreement on where the

children should attend school and the geographic distance between them. The

court reasoned:

Adam and Sara restarted their lives away from Monticello so
it makes no sense to leave their two children behind for the sole
purpose of preserving a joint physical care arrangement that was
only workable when both parents lived close to where their children
went to school.
Adam and Sara’s fundamental disagreement on daily matters
outweighs their past and current history of respectfully cooperating
in so many other parenting maters while they shared physical care
of their children. It’s in [the children’s] best interest to go to a school
near where one of their parents resides and not spend an
unnecessarily long amount of time in the car or bus commuting to
and from school.

Turning to who should be granted physical care, the court generally

concluded consideration of the factors contained in Iowa Code section 598.41(3)

(2020) did not favor one parent over the other, as “Adam and Sara are such

talented parents.” What stood out to the court was the relationship between the

parties’ children and Jenelle’s children, their soon-to-be step-siblings. While the

court acknowledged they were not yet step-siblings, the court noted the parties’

children already treated Jenelle’s children as siblings and were closely bonded to

them. The court also acknowledged the children’s bond with Andy’s college-aged

daughter. But it found the children would benefit more by being in Adam’s home

with Jenelle’s children because they are closer in age and would attend the same

school. As such, the court placed the children in Adam’s physical care with

visitation for Sara, including alternating weeks during the summer months. At

Sara’s request, the court enlarged the decree to provide more specifics about
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visitation but otherwise denied her motion to reconsider, enlarge, or amend. Sara

now appeals.

II. Standard of Review

Appellate review of dissolution proceedings is de novo. Iowa R. App.

P. 6.907; In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). While we

give weight to the factual findings of the district court, especially when considering

the credibility of witnesses, we are not bound by them. Iowa R. App. P. 6.904(3)(g);

In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). When considering

child custody, our principal consideration is the best interests of the children. Iowa

R. App. P. 6.904(3)(o); see In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa

1983).

III. Analysis

A. Joint Physical Care

We start with Sara’s claim that the children should have been placed in the

parties’ joint physical care. Where, as here, “joint legal custody is awarded to both

parents, the court may award joint physical care to both joint custodial parents

upon the request of either parent.” Iowa Code § 598.41(5)(a). Physical care

determinations are based on the best interests of children, not “upon perceived

fairness to the spouses.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa

2007). “The objective of a physical care determination is to place the children in

the environment most likely to bring them to health, both physically and mentally,

and to social maturity.” Id.

We consider the following nonexclusive factors in determining whether a

joint physical care arrangement is in the best interests of children:
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(1) “approximation”—what has been the historical care giving
arrangement for the child[ren] between the two parties; (2) the ability
of the spouses to communicate and show mutual respect; (3) the
degree of conflict between the parents; and (4) “the degree to which
the parents are in general agreement about their approach to daily
matters.”

In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (quoting

Hansen, 733 N.W.2d at 697–99).

We agree with Sara, and the district court, that the first three Hansen factors

unquestionably weigh in favor of placing the children in the parties’ joint physical

care. And with the exception of where the children should attend school, the

parties also generally agree about their approach to daily matters. But our

determination “must still be based on Iowa’s traditional and statutorily required

child custody standard—the best interest of the child[ren].” Hansen, 733 N.W.2d

at 695. Even if the Hansen factors weigh in favor of joint physical care, “[t]he

geographic proximity of the parents” is a mandatory consideration under Iowa

Code section 598.41(3)(h) and can serve as a “major obstacle” to shared care.

See Teggatz v. Ellingson, No. 19-1816, 2020 WL 2065944, at *2 (Iowa Ct. App.

Apr. 29, 2020).

Simply put, requiring these young children who are in the formative years

of their education to endure about one hour of commuting time each day while in

Sara’s care and two hours while in Adam’s care is not in their best interests. See,

e.g., Garland v. Dunn, No. 21-0415, 2021 WL 5106447, at *3 (Iowa Ct. App. Nov.

3, 2021) (explaining “[o]ur case law makes clear that geographic distance alone

between co-parents can make joint-care agreements unfeasible, especially as ‘the

stress of the commute falls on the child disproportionately’” and agreeing a one-
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hour drive “made shared care impractical” (citation omitted)); Thorpe v. Hostetler,

949 N.W.2d 1, 6–7 (Iowa Ct. App. 2020) (finding joint physical care was no longer

in child’s best interests when one parent moved one hour away); Teggatz, 2020

WL 2065944, at *2 (finding need for child “to be driven nearly an hour to school

and nearly an hour home every school day for half the time” rendered joint physical

care contrary to child’s best interests); In re Marriage of Scurr, No. 11-1905, 2012

WL 2122306, at *1 (Iowa Ct. App. June 13, 2012) (finding that “[b]ut for the distance

between the parents’ homes, this would have been a paradigmatic case for joint

physical care” under the Hansen factors but agreeing “approximately an hour and

a half to an hour and forty-five minutes of travel time each day” was a “major

obstacle” rendering joint care unworkable).

We acknowledge Sara’s claim that denying her request for joint physical

care changes the consistency the children have known. But these children are

young and adaptable, and any consistency they have experienced under the

temporary order has been short-lived. This short-term consistency is outweighed

by the detriment they would experience under Sara’s proposed joint physical care

arrangement. See, e.g., In re Marriage of Muell, 408 N.W.2d 774, 776 (Iowa Ct.

App. 1987) (“[W]hile in most cases a child’s best interests will be served by

associating with both parents, an attempt to provide equal physical care may be

harmfully disruptive in depriving the child of a necessary sense of stability.”). The

distance between the parties’ current homes is just too great to allow joint physical

care to be workable. See Thorpe, 949 N.W.2d at 6–7 (collecting cases). We

accordingly affirm the district court’s denial of Sara’s request for joint physical care.

B. Physical Care
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Next, Sara challenges the district court’s decision to place the children in

Adam’s physical care instead of hers. With these two superior parents, the district

court was unquestionably tasked with a difficult decision, one that it described as

a “close call” after considering the relevant physical-care factors. See Iowa Code

§ 598.41(3) (setting forth relevant factors); In re Marriage of Winter, 223 N.W.2d

165, 166–67 (Iowa 1974) (discussing additional factors). “In close cases such as

this, we give careful consideration to the district court’s findings.” In re Marriage

of Reed, No. 09-0029, 2009 WL 4122884, at *6 (Iowa Ct. App. Nov. 25, 2009).

The difference that stood out to the district court, and us, is that Andy’s

daughter is an adult on the brink of leaving the nest to attend college, while

Jenelle’s children are closer in age to the parties’ children and will attend the same

school. This circumstance will help the children transition into their new school.

The children will also benefit more from their relationship with Jenelle’s children,

who will be in Adam’s home with them, as opposed to Andy’s daughter, who is

starting her adult life. Sara does not dispute this rationale, and we find her claim

that the court failed to consider the children’s relationship with her, Andy, and his

daughter unfounded. Sara also claims that the court made no finding the school

the children will attend in Adam’s care is better than the school they would attend

in her care. But the parties offered no evidence about the characteristics of each

school, other than that one is public and one is private. The court properly based

its decision on the evidence before it.

We end with Sara’s claim that the court did not find Adam can provide

superior care. As we have stated throughout this opinion, both parents are

exemplary and can provide equally satisfactory care for the children. See
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Fennelly, 737 N.W.2d at 101 (noting the “conundrum” faced by the district court in

deciding which of two suitable caretakers should have physical care). But because

a joint care arrangement is unworkable, a physical-care parent had to be chosen.

In this close case, the district court was in the best position to make that decision

with its unique ability to assess witness demeanor. See In re Marriage of Roberts,

545 N.W.2d 340, 343 (Iowa Ct. App. 1996) (“[I]n the end we determine this to be

a close case, for both parents love their children very much and each is capable

of providing for their long-range best interests. In situations such as this, we note

the district court had the parties before it and was able to observe and evaluate

the parties as custodians.”). We affirm the court’s placement of the children in

Adam’s physical care.

C. Appellate Attorney Fees

Adam requests an award of appellate attorney fees, citing his obligation to

defend the district court’s decision. “Appellate attorney fees are awarded upon our

discretion and are not a matter of right.” In re Marriage of Heiar, 954 N.W.2d 464,

473 (Iowa Ct. App. 2020). “When considering whether to exercise our discretion,

we consider the needs of the party seeking the award, the ability of the other party

to pay, and the relative merits of the appeal.” Id. (altered for readability). Adam

was obligated to defend the appeal, the central focus being the court’s denial of

Sara’s request for shared care. But our determination of that issue was an

extremely close call. Adam also has a higher income, and there is nothing in the

record to show he has a need for an award. Sara’s lower income and support

obligation also limit her ability to pay. Upon our review, we deny Adam’s request

for appellate attorney fees. However, costs on appeal are taxed to Sara.
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IV. Conclusion

We affirm the district court’s physical care decision and deny Adam’s

request for appellate attorney fees. Costs on appeal are taxed to Sara.

AFFIRMED.