Child Custody F.A.Q.

LAW CONCERNING CHILD CUSTODY WHEN PARENTS DIVORCE OR UNMARRIED PARENTS SEPARATE

FREQUENTLY ASKED QUESTIONS
Note: This information is not meant to serve as legal advice. It only provides a general description of the law and does not go into details which might affect your case. You should seek the advice of an attorney concerning your specific situation. Use these questions and answers to prompt questions when visiting with your attorney.

What is custody?

Legal Custody:
The terminology used in the Iowa Code can be confusing. The term “custody” does not have the same meaning as understood by most people. “Custody” only refers to the right to have a continuing legal relationship of a parent to a child. Some examples of rights preserved include: 1) discipline and instruction of a child while the child is with the parent, 2) access to school and medical records, 3) decisions about child’s legal status, and 4) decisions about a child’s medical care, education, activities, and religious education.

  • Options: The court can award one parent “sole custody” or both parents “joint custody.” The law presumes the parents will have “joint legal custody” unless certain unique facts are proven. Generally, if one parent is a serious threat to a child’s wellbeing, sole custody may be awarded to the other parent.
  • Factors which favor sole custody include, but not limited to:
    1. Involving children in immoral or criminal behavior;
    2. Mental illness which threatens a child’s safety or welfare;
    3. A history of domestic violence, child abuse or neglect;
    4. A parent’s substance abuse.
    5. Joint custody did not work well.

What is Physical Care? (Primary, Joint or Shared)

Physical Care:
“Physical care” means the right and responsibility to maintain a home for the minor child and to provide for the routine care of the child. All decisions are based upon what the judge believes to be the “best interests of the child.”

  1. Primary vs. Joint or Shared: The court can name one parent as the “primary” physical care provider in which case the other parent is often described as having visitation. The court can also award “joint physical care” where both parents share parenting time with the child, both provide homes and routine care and where neither parent has physical care rights superior to the other parent. This option usually requires a detailed parenting plan which assigns time with the child and financial obligations.
  2. Gender does not determine outcome

iii. Factors a court uses to decide between “primary” and “joint” physical care, include, but are not limited to:

  1. Distance between the parents;
  2. The ability of the parents to communicate and cooperate together as parenting issues arise;
  3. A workable plan of joint care.
    • Factors a court uses to decide which parent should be the “primary physical” care provider of the child(ren), include, but are not limited to:
  4. The child’s physical, social and emotional safety and wellbeing;
  5. A history of domestic violence, child abuse or neglect;
  6. Parenting skills and motivation of the parents;
  7. A history of one parent providing more hands-on-care of the children;
  8. Child’s wishes, taking into account the child’s age and maturity;
  9. A parent who will not support the child’s relationship with the other parent is less likely to be made the primary caretaker;
  10. Child’s relationship to siblings, extended family and community;
  11. Involving children in immoral or criminal behavior;
  12. Mental illness which threatens a child’s safety or welfare;
  13. A parent’s substance abuse.

At what age can a child decide which parent to live with?
The judge may consider the preferences of a child who is mature. There is no magic age at which a child gets to choose the parent they will live with.
The judge, not the child, makes the final decision. Once a judge makes the decision, it can only be modified in a subsequent decision after proving a substantial and material change in circumstances has occurred which, in the best interest of the child, requires a change in the physical care arrangement.

How do judges decide visitation?
In ordering visitation, a judge starts with the assumption that it is best for a child to meaningful, relationship-building contact with the visiting parent.
The child’s maturity, parents’ schedule and distance between the parents are often significant factors which determine the type, frequency and length of visitation. In addition to visits in the home, visits by phone, e-mail, or web camera are possible. Where a parent is a potential threat to a child’s well being, supervised visitation can be required.

Who pays child support?
A parent who is designated as having visitation will have to pay child support to the other.
In a joint physical care arrangement, the party with the greater income usually pays child support to the other.

How is child support calculated?
Child support payments are determined by a formula based upon each party’s net income, the number of children, union dues, mandatory occupational license fees, the costs of the child(ren)’s health insurance, the amount of nights a visiting parent has or joint physical care, child care costs, and prior court ordered child support and or medical support for a child(ren) of another relationship, and alimony.

Who provides health insurance for the children?
A judge will decide who must provide medical coverage after examining who has coverage available through their employer, whether the cost of adding the children is reasonable (as defined by a formula), the benefits offered and co-insurance. All things being equal, the parent who pays child support will likely have to obtain health insurance to cover the children if it is available through an employer.

Does child support include college? Who pays for college?
Post Secondary-Education Subsidy: Divorced parents can be ordered to pay for a child’s college education to the extent the child does not have resources to pay. The obligation is limited by the parent’s ability to pay and should not exceed 1/3 of the cost of attending a state university in Iowa. There are additional conditions for a child to be entitled to the support. The rules concerning post secondary education subsidy do NOT apply to parents who never married.

Will there be someone to represent the children? (An attorney for children)
At the request of one or both spouses, a judge may appoint an attorney or advocate for the children. The cost of this person may be taxed as court cost to be paid by the parties. An attorney or advocate is often recommended where the parents express hostility toward each other, or where a parent is involving the children in the divorce in a harmful way, or where the child has special needs or interests adverse to a parent. In Linn and Johnson Counties, there is a program called Kids First which is partially funded by grants and provides attorneys for children at a sliding fee. See: http://www.kidsfirstiowa.org/

Will our children have to attend a class? 

In Linn County and a few other counties, judges require that children attend an age appropriate class to help children cope with the divorce of their parents. Parents of children between ages 6 and 16 may find these classes beneficial, even if not required by a court order. Go to: http://www.kidsfirstiowa.org/

What if there is a question about “who is the biological father of a child?”

Paternity: Either party may ask the court to decide whether a named father is the biological parent of a child. The court can order genetic testing. Generally, the person requesting the test pays for it initially, but a judge can assign responsibility for the costs of the test in the final decree. Proving a man is not the biological father of a child does not necessarily sever all parental rights and responsibilities. Children born or conceived during the marriage are presumed to be the biological children of the husband. If this is not the case, a process to “disestablish paternity” is required.