Brian Albert Mahedy v. Amanda Jean Gibson ( 2018 )

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.
3
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.