Family Law

No "presumption" or "preference" for Joint Physical Care

By Alexander Rhoads

The Iowa Supreme Court today issued its first opinion discussing the impact of the 2004 legislative changes to Iowa's child custody law.  The case is In re Marriage of Hansen.  In a lengthy (40 page) decision, the Court holds that "the 1997 and 2004 legislation did not create a presumption in favor of joint physical care.  There is simply nothing in the language of the amendments that supports such an assertion." 

The opinion is also notable for its extensive citations to social science research and studies.  The Court sums up this research as follows: "At present, the available empirical studies simply do not provide a firm basis for a dramatic shift that would endorse joint physical care as the norm in child custody cases." 

The decision emphasizes "stability and continuity of caregiving" as "important factors that must be considered in custody and care decisions."  The Court goes on to note its endorsement of, but not wholesale adoption of the American Law Institute's "approximation rule," which states that custodial responsibilities should be allocated "so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation...."

The Court also emphasized the "ability of spouses to communicate and show mutual respect" as a "second important factor" in determining the appropriateness of joint physical care. 

In sum, the opinion is a clear rejection of the arguments that joint physical care is a "preferred" custodial award following the 2004 legislative amendments to Chapter 598.

Full post as published by Iowa Divorce and Family Law on June 15, 2007 (boomark / email).