Search      Tips on Searching Find Legal Help On Custody/Visitation Related Resources How Social Networking Can Be Used Against People in Family Law Cases By: Iowa Legal Aid Joint Physical Care or Physical Custody - What Is It? By: Iowa Legal Aid Internet Safety (Separate Website) By: Iowa Coalition Against Domestic Violence more...

One of the most important decisions we ask our judges to make is what should happen to people's children when they get divorced or separate. It would be impossible to write a law that a judge could simply look at to know what to do with the children in every single case. Instead, a judge must decide in each case what is best for the children in that particular case. Judges do this by first listening to all the evidence. Then they look at the laws the Iowa Legislature has passed that tell judges how to use the evidence to make their decisions.

They also look at decisions from the Iowa Court of Appeals, and from our state's highest court, the Iowa Supreme Court. These decisions also tell judges how to use the evidence to make their decisions, and give them examples of similar cases from the past. In fact, judges must follow these decisions. In our American system of law, the decisions of a higher court are part of the law, just like laws passed by Congress or another lawmaking body. We call laws passed by Congress or a state legislature or a city council "statutory law." Decisions made by courts like the Iowa Supreme Court are called "case law."

Case law plays a very important part in making our system of justice as fair as possible. Take the problem of what to do with the children of a man and a woman who are separating. The statutory law, the one passed by the Iowa Legislature, says that the judge must do whatever is best for the children. But that is not going to help you think about what the judge might do in your particular case. For that, you need to look at the case law. You need to see what the Iowa Supreme Court and the Iowa Court of Appeals have said.

An Important Decision

In the summer of 2007, the Iowa Supreme Court published a very important decision for couples with children who are separating. The case (and the decision) are called In re the Marriage of Hansen. "In re" means "In the matter of." We will refer to it as Hansen for short. Because the Iowa Supreme Court is the highest court in Iowa, the things the court says in the Hansen decision are now part of the law in our state. The Hansen decision is very important for separating couples with children because of the things it says about something called joint physical care.

Custody Is Not Care

Before we talk about what the Hansen decision actually says, we need to talk about legal custody and physical care.

A lot of people use the word "custody" without realizing that a judge in a custody case actually has to make two decisions. First, a judge must decide which parent (or parents) should get legal custody. Having legal custody is a bit like being a child's "official" parent in the eyes of the law. A parent who has legal custody of a child has the right to take part in any important decisions that are made in that child's life. For example, a parent who has legal custody of a child has the right to take part in deciding where the child goes to school, what church the child will go to, and what extracurricular activities the child will participate in. If the child needs medical treatment, a parent who has legal custody of that child has the right to take part in deciding whether the child will get the treatment, where the child will get the treatment, and so on.

Once a judge decides who will have legal custody of the child, the next decision is who will have physical care. Physical care is very different from legal custody. A parent who has physical care of a child is the parent with whom the child lives most of the time. A parent with physical care of a child is in charge of that child's daily routine. That means the parent is responsible for getting the child to school, fixing the child's meals, putting the child to bed, and so on.

In Iowa, judges almost always give joint legal custody of children. "Joint" means the judge gives legal custody of the children to both parents. Think of it as a perfect fifty-fifty split: each parent has exactly the same "amount" of legal custody. To put it another way, each parent is equally the parent of the child. Neither parent is "more" the child's parent than the other. Iowa law says a judge should always give joint legal custody unless there is a very, very good reason to give legal custody to one parent only.

That leaves physical care. In the past, judges almost always gave physical care to one parent (when physical care is given to one parent it is called "primary physical care"). The other parent got visitation. Most Iowa cases still turn out that way. More and more often, however, Iowa judges are giving parents who separate something called joint physical care. Joint physical care is a bit like joint legal custody: the split isn't always fifty-fifty, but it's usually pretty close. Instead of living with one parent most of the time and having visits with the other, a child whose parents have joint physical custody will move back and forth between both parents' households. The child may live with one parent for a week, then with the other for a week. Or two weeks, or a month. There's no limit to the number of different ways physical care can be split up. The point is that it's split, instead of being given to one parent or the other.

Changing Times

In the past, Iowa case law (court decisions) said that joint physical care is usually not the best thing for children whose parents are separating. In fact, Iowa court decisions said that the best thing for children, most of the time, is to live with one parent and have visits with the other. In other words, Iowa judges were supposed to give physical care to one parent or the other.

That started to change in 1997. In 1997, the Iowa Legislature passed a law saying that judges could give parents joint physical care if they thought it was best for the children. The Legislature changed the law again in 2004 to say that if either parent asks for joint physical care and the judge doesn't think it's the best thing for the children, the judge has to explain in his or her decision exactly why he or she doesn't think joint physical care is the best thing for the children.

Taking a Fresh Look

Lyle and Delores Hansen were married in 1987. In 2004, Lyle filed for divorce. Both parents wanted physical care of their two children, but Lyle told the district court judge he thought joint physical care would be all right too. The judge gave Lyle and Delores joint legal custody and joint physical care. The judge said the children should spend six months with Delores, then six months with Lyle, and so on. The judge gave the parents joint legal custody of the children, and both Lyle and Delores agreed with that decision.

Delores appealed the judge's decision to the Iowa Court of Appeals. The Court of Appeals said the judge had made a mistake in giving the parents joint physical care. The court said the judge should have given physical care of the children to Delores. Lyle then appealed this decision to the Iowa Supreme Court, the highest court in our state. The Supreme Court agreed with the Court of Appeals, and ordered that Delores have physical care of the children.

For Lyle and Delores, the important part of the Iowa Supreme Court's decision is who gets physical care of the children. For the rest of us, however, the important thing about the Hansen decision is that it is now part of Iowa law. That makes it important because the Hansen case was the first time the Iowa Supreme Court took a long, hard look at the changes the Iowa Legislature made in the law in 1997 and 2004. In the Hansen decision, the court is telling us how judges are supposed to use these new laws in the future.

Families Then and Now

The Iowa Supreme Court starts out by observing that families have changed over the years. In the past, it was most common to have one parent (usually the father) who worked, and one parent (usually the mother) who kept the home and raised the children. Nowadays there are families where both parents work, families where the mother works and the father stays home, and many other kinds of families.

The court also points out that the way psychologists and other scientists think about families has changed. In the past, many scientists believed it was most important for a child to form a strong bond with one parent or the other. This theory was very influential, especially with judges. Today, this theory is being challenged by another theory that says the most important thing is for children to have as much contact as possible with both parents. In fact, a lot of studies suggest that joint physical custody may be better than the old way, at least in some situations. The court does not say that joint physical care is always better, but it does reject the old view that joint physical care is usually worse. As we've seen, that is a big change indeed.

What Not to Do

Before we say much more about the Hansen decision, it is important to understand a couple of things the Iowa Supreme Court did not do.
First, the court did not say in the Hansen decision that judges should assume joint physical care is best for children whose parents are separating. Remember, in the old days, the law said judges were to assume that joint physical care is usually bad. The Hansen decision did not reverse that rule: judges are not supposed to assume now that joint physical care is usually good. Instead, judges are supposed to assume that neither kind of physical care (primary or joint) is better than the other. Judges are supposed to look at the evidence and decide which kind of physical care is best for the children in each particular case.

Second, the court did not change the basic question judges are supposed to ask when making any custody decision. In the law, we call such a question a "standard." In custody cases, the standard is "the best interest of the child." In other words, when deciding what kind of physical care to award, a judge must ask what will be best for the children. That doesn't mean the judge should ignore what the parents want or need. But if the parents want one thing, and the judge thinks the children need something else, the judge should go with what the children need.

A List, Not a Checklist

Another interesting thing about the Hansen decision is that it gives us a list of issues that judges should think about before awarding joint physical care. The Iowa Supreme Court wants us to be very careful when we use this list, however. We should not think of it as a checklist and work our way down it in a mechanical way. Nor should we think of it as a "Top Ten" list, in which some things are more important than others. Finally, we should not make the mistake of thinking that this list contains all the things a judge should think about when making a custody decision. Above all, the court says in the Hansen decision, judges must look at the unique facts in each case.

Things the Court Says Will Almost Always Be Important

CONTINUITY. Sudden, major changes in the way children are raised can be very harmful to them. In most cases, the court says, it is probably best if whichever parent (or parents) spent the most time raising the children before the separation continues to do so after the separation. Let's take a family where the father worked a lot and the mother stayed home with the children. The children are used to being raised mostly by the mother. It is quite possible that it would be best for them if the mother got physical care, so they can continue to be raised mostly by her. But let's take another family where the father and mother worked opposite schedules, so each parent was home with the children about half the time. In this case, a judge might want to give more serious consideration to joint physical care. Dividing their time between mom and dad might be more like what these children are used to anyway.

COMMUNICATION. Joint physical care requires a lot of good communication between the parents. When one parent has primary physical care, that parent is usually the only one making sure the children get enough food and rest, get the medical and other care they need, and get to their various activities on time. When the parents have joint physical care, they must coordinate their lives carefully to make sure these things happen. Such parents must be able to communicate with one another and treat each other with respect. In cases where this is not possible (such as where there has been domestic abuse), joint physical custody is likely to be a bad idea.

CONFLICT. This problem is closely related to the problem of communication. As we have seen, joint physical care only works when the parents can communicate with each other. Not only will they have to do this effectively and respectfully, they will have to do it constantly. Judges must therefore look carefully at the history of conflict between the parents. If they are unable to work together without getting into fights, joint physical care probably won't work.

AGREEMENT. How closely do the parents agree on basic questions about raising children? As the Iowa Supreme Court says, it is not necessary that both parents agree on every single thing, but both must be "generally operating from the same page." If, for example, one parent thinks the children should be in bed by 8:30 and the other prefers to let them stay up until 9:30, that is probably not a big deal. But if one parent believes the children should have a bedtime and the other believes they should be allowed to go to sleep whenever they want, that could make joint physical care quite a bit more difficult. Judges should consider how similar or different the parents' child-raising philosophies are.

All Things Considered

It is worth repeating (the Supreme Court does!) that this list is not meant to be a complete one. Other factors a judge should consider include:

• Each parent's ability to raise the child;
• The child's psychological and emotional needs;
• Whether each parent can support the other parent's relationship with the child;
• What the child wants, taking into consideration the child's age and maturity;
• How close or how far apart the parents are going to be living;
• Whether supervised visitation is necessary to protect the child or one of the parents;
• Whether there has been domestic abuse.
  

Above all, the Iowa Supreme Court in the Hansen decision warns us not to deal with custody cases in a "one-size-fits-all" way. As we have seen, it is most important that judges look carefully at all the facts in each case. Often, people are confused because judges make different decisions in cases that seem to be the same. For example, two couples separate. In both cases, the father works and the mother stays at home. But in one case, the judge gives primary physical care to the mother, while in the other case the judge awards joint physical care. We must remember that judges are supposed to look at all the facts, not just some of them.

Perhaps in the case where the judge gave physical care to the mother there was a history of domestic abuse. Or maybe in the case where the judge gave joint physical care the mother was planning to go back to work.
Another factor judges are supposed to consider is whether the parents want joint physical care. If both parents say joint physical care is OK, the judge has to consider it. If both parents say they don't want joint physical care, the judge is probably less likely to consider it. One thing the Iowa Supreme Court makes clear in the Hansen case is that neither parent can "veto" the idea of joint physical care. That means if one parent wants joint physical care and the other doesn't, the judge has to consider it anyway. The judge may decide joint physical care is a bad idea for some other reason, but neither parent can stop the judge from considering it just by saying no.

One factor a judge is not supposed to consider is the sexes of the parents. Iowa law says that custody decisions must be "gender-neutral." That means the judge should not assume either parent is a better parent just because he or she is a man or a woman. A long time ago, most state laws said young children should be raised by their mothers. That is not the law, at least not in Iowa. If an Iowa judge decides joint physical care will not work, then that judge must give primary physical care to one parent or the other. But the judge may not give primary physical care to the mother because she is a woman, or to the father because he is a man.

The Hansen decision makes it clear that a judge will still consider what is in the child's best interest in deciding what should happen to children when parents divorce or separate. The court can consider joint physical care when requested by a parent. In deciding if joint physical care is best, the judge will consider many things including continuity of care, ability of the parents to communicate with each other, the amount of conflict between the parents and agreement about how to raise the child.

If you would like to read the Hansen decision for yourself, you can find it in the Northwestern Reporter, Second Series. A reporter is a collection of books where court decisions are published. The Northwestern Reporter publishes decisions from Iowa and other states in our region. The Hansen decision is in volume 733 of the second series, beginning on page 683. Most Iowa courthouses have a set of the Northwestern Reporter, as do the law libraries at the University of Iowa and Drake University. You can also download a copy from the Iowa Supreme Court's website (www.judicial.state.ia.us). If you have questions about what the Hansen decision means for your particular situation, you should consult an attorney. If you need to talk to a lawyer but can't afford one, call Iowa Legal Aid at 1-800-532-1275. Persons speaking Spanish should call 1-800-272-0008.