This article will talk about how domestic abuse is often a factor in Iowa child custody cases. While maintaining a general policy of wanting children to have maximum physical and emotional contact with their parents, Iowa law considers domestic abuse and the interest of the child as an important factor when deciding custody.
What is Child Custody Law in Iowa?
Iowa Code chapter 598.41 is the primary Iowa custody statute. In Iowa, there are two kinds of custody: legal custody and physical custody. Legal custody is the ability to make decisions for the child, such as education, religion, health care, and whether the child will participate in extracurricular activities. Physical custody (also called physical placement) is where the child lives and meets their day-to-day needs.
The court may award legal custody to both parents (“joint legal custody”) or one parent (“sole legal custody”). The court may split physical custody evenly between the parties (“shared physical custody/shared physical placement”) or primarily award to one parent (primary physical custody/placement). If one parent is awarded primary physical custody, the noncustodial parent is always granted visitation. There are situations where a court allows the custodial parent to decide when and if a parent is allowed visitation, that visitation be supervised, or that it is in the child’s best interests that one parent not be allowed visitation. However, these are the exceptions to the rule.
How is Domestic Abuse Defined in Iowa?
Domestic abuse is defined in Iowa Code Chapter 236.2. The definition of abuse is the same in protective order cases.
Domestic abuse requires an assault and a specific relationship between the parties (including if the parties are parents of the same child; or the parent-child relationship). An assault under Iowa law is any act intended to cause pain or injury to a person or any act which will be insulting or offensive to another, with the apparent ability to do that act. Assault is also any act intended to place another in fear of immediate physical contact, which will be painful, injure, insult, or offend, combined with the apparent ability to do the act.
For instance, someone hitting someone else on purpose is an assault. Intentionally throwing a punch in someone’s direction and stopping right in front of their face could also be an assault if the puncher intended to cause fear and could have hit the person. However, if a person texts another that they are going to punch them, but they are not in the home at the time, this is not an assault under Iowa Law.
Assault is also defined as intentionally pointing any firearm toward another or threateningly displaying a deadly weapon to a person.
What Does the Court Consider in Custody Cases Involving Domestic Abuse?
If the court finds domestic abuse occurred in the family, there is a rebuttable presumption against joint legal custody. In determining whether domestic abuse has occurred, the court must consider:
- The commencement of a protective order action (or protective order action filed on behalf of a minor)
- The court granting a protective order against the parent,
- The issuance of a consent order or consent agreement (one party agreeing to stay away from the other parent without admitting abuse occurred)
- The issuance of an emergency order involving the parties or children
- The finding of a parent in contempt of a no-contact order (usually one parent contacting the other in violation of the order)
- The response of a police officer to the scene of an alleged domestic abuse
- The arrest of a parent for alleged domestic abuse, or
- A conviction for domestic abuse.
This is a non-exhaustive list, and the court may consider other evidence of domestic abuse.
What Does Iowa Law Say About Domestic Abuse in Custody Cases?
Suppose the court finds a history of abusive behavior between the parties. In that case, there is a rebuttable presumption against awarding joint legal custody. A court may still award joint custody, but the parent will have to overcome that presumption. If one parent does not agree to joint custody, the other party may apply for joint legal custody.
When deciding a custody arrangement, the court is also specifically directed to consider a history of domestic abuse related to the best interests of the minor children. This may be how the domestic abuse has directly impacted the children or how domestic abuse has influenced one of the other factors the court must consider. For instance, if the domestic abuse has impacted the parents’ ability to communicate about the child, the court will be less likely to award joint legal custody.
Can a Party Refuse Visitation Because of Domestic Abuse?
Under normal circumstances, a court would not look with favor upon one parent refusing to let the other see the child. However, suppose the court finds domestic abuse exists between the parents. In that case, the court may consider this just cause for not allowing the contact. Likewise, if a parent who is a victim of domestic abuse moves or is absent from the home because of fear or acts of abuse done by the other parent, the court will not weigh that absence against the parent.
However, to the extent possible, it is usually best for both parents to allow the other parent to have visitation if the court does not find that abuse occurred.
Will the Existence of Domestic Abuse Affect Requirement to Mediate?
The court may require the parties to mediate. In some counties, mediation is mandatory in every custody case. However, suppose one party submits an affidavit alleging domestic abuse and an application to waive the mediation process. In that case, the court may waive the mediation requirement.
Child custody cases can be an intimidating process. Having the proper legal counsel and legal advice can make all the difference. Call our office at (630) 324-6666 or schedule a consultation with one of our experienced Iowa family law attorneys today. You can also fill out our confidential contact form, and a member of our team will be in touch with you.
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