From In re Marriage of Shada, decided Wednesday by the Iowa Court of Appeals, in an opinion by Judge Gina Badding, joined by Judges Samuel Langholz and Michael Mullins:e
David … challenges the district court's decision to place their three minor children in Nicole's physical care. He argues that Nicole "is not supportive of the children's emotional needs, she is profane in her communications with the children and does not support the children's relationship with [him]." The court discussed those issues but found they were outweighed by Nicole's role as the children's primary caretaker. We disagree on our de novo review of the record and modify the decree to place the children in David's physical care….
Because David does not contest the district court's decision to deny joint physical care, the only issue before us is which parent should serve as the children's primary caretaker. Our focus in resolving this issue is the best interests of the children…. Generally, courts … the suitability of parents, whether the children will suffer from lack of contact with and attention from both parents, quality of parental communication, the previous pattern of caregiving, and each parent's support of the other.
With those factors in mind, David argues that he is the more suitable parent because Nicole's "attitude toward her daughters … is quite negative," she generally dismisses the children's feelings and mental health, she places the children in the middle of parenting issues, and she does not support the children's relationship with David….
We have long recognized "[t]he fact a parent was the primary caretaker prior to separation does not assure he or she will be the custodial parent." We think this is especially true with a father like David who, although he was the family's primary breadwinner, was not uninvolved like Nicole would have us believe.
The district court recognized this to a certain extent, finding that while it had "no doubt that Nicole has been the primary caregiver for the children throughout the years," the court was "not saying that David hasn't parented the children." Instead, the court concluded that his "role in caring for the children did not ever consistently rise to the level of Nicole caring for the children." But David correctly challenges the quality of that caretaking and its effect on the children's mental and emotional health, which was already suffering.
While the court also recognized Nicole's negative attitude toward the children and lack of support for David's relationship with them, we agree with David that those factors should have been given more weight. Iowa courts "do not tolerate hostility exhibited by one parent to the other." And Nicole has been hostile to the extreme—not just in private with David, but in text messages with the children and in public with friends and family…. "The ability of each parent to actively support the other parent's relationship with the child is an important factor in determining the physical [care] arrangement." "More importantly, the ability of each parent to do so is instrumental in the successful mental, emotional, and social development of the children." Nicole has shown no ability to support David's relationship with the children, undermining and demeaning him at every opportunity. In contrast, David worked to gloss over Nicole's shortcomings when the children complained to him and continually assured them of her love….
Here's the court's summary of the facts:
David and Nicole married in 2011. Nicole petitioned to dissolve the marriage in March 2023, and a trial was held in October after an unsuccessful attempt at mediation. While the divorce was pending, the parties continued living together at the family's acreage with their three children: daughters born in 2009 and 2010, and a son born 2016….
Nicole shared her negative opinions about David with the children. In a group text with their daughters, when David messaged Nicole about taking the children to the mall, she replied, "Look at you go super dad." In another, Nicole told the middle child that she wouldn't have to babysit her brother "if u[r] dad just came home like any other father i[n]stead of hanging out and drinking with his low life druggy 'friends.'" When David replied, "Totally not appropriate to be texting," and asked her to stop, Nicole shot back with, "Nothing but facts u super father."
The next month, Nicole texted the girls and David, "All the laundry I did is sitting in baskets downstairs … don't worry girls I also do laundry too lmfao." The middle child asked, "Who said you didn't?" And Nicole replied, "Ur father to his attorney."
And in another exchange, Nicole texted the oldest child: "are u okay watching ur brother again this weekend and being home alone while I'm at work and your dad goes out and drinks and doesn't come home again and stays elsewhere until I don't get home till 230 am knowing u have a big tournament … [t]omorrow[?]" David replied, "Yes she said that's fine. And you've already said it's ok." After Nicole answered, "I just need her to sign the paper u went out again so I'm just making sure :)," the oldest child jumped in, "Nope leave me out of this."
Beyond these and other similar text messages, David alleged that Nicole once told the children that he "was out fucking hoes." And he testified that just two days before trial, the youngest child told him, "Mom says you're trying to sell the house and sell all the animals, and I really like my cat." David assured the child that "your mom and I both want you guys to be able to stay in the house."
Nicole unapologetically agreed at trial that she has undermined David's discipline of the children and said things in front of them about David wanting to sell the house, not being an involved parent, drinking with his friends, and using drugs. David testified that when he asks her to not say those things in front of them, Nicole will reply, "This is the truth. They need to hear this."
Nicole's harsh communication was not limited to David. Multiple witnesses testified about times they saw Nicole "cussing and yelling" at David or the kids. Nicole admitted at trial, "I'm a yeller," which is apparent even in her text messages. As just one example among many, Nicole texted the oldest child during a softball game, berating her for missing a catch: "What the fuck!!! That was ur god damn ball out there … how embarrassing." When the child sent David a screenshot of the message, he replied, "Good try honey. See you back at home and love you." In other messages, Nicole will text the children to "[l]et the god damn dog in now" or "[g]et the F off my fn headphones. … Now damnit."
David testified the children often asked him for advice: "We have a really good relationship. … If they struggle with friendship stuff, they'll come talk to me. If they're struggling with their mom, they'll come talk to me." Text messages between David and the children confirmed this. In one, the oldest child told David about a comment Nicole made to her in a dressing room, and David replied, "Well she love[s] you dearly. She just wants you to do well and enjoy homecoming." And when the middle child told David that Nicole "freaking ruins my life" and doesn't love her, David replied, "She was just stressed probably. … She loves you."
After David's counsel uploaded these text messages as exhibits for the trial, David said the middle child contacted him in a panic because, while the children were at school, Nicole had texted them "something like, you know, 'why you guys talking shit on me.'" The child was so upset that David "had to basically walk her through just getting her to the point where we could get her to the counselor's office because she was going into the bathroom and hiding away and crying." …
There's more in the full opinion.
Krisanne C. Weimer of Weimer Law, PC represents David.
UPDATE: Note that Iowa is one of the few states in which appellate courts review trial court custody decisions mostly "de novo" (i.e., applying their own judgment, though taking seriously the lower court's observations and statements) rather than for "abuse of discretion" (i.e., generally deferring to the lower court unless it seems to have applied the wrong legal standard, or have applied the right legal standard but in a way that seems highly unreasonable). According to Seth F. Gorman, Donna Furth & Matthew Barach, writing in Handling Child Custody, Abuse and Adoption Cases (Ann M. Haralambie ed., last updated 2023), the "de novo" states are Arkansas, Iowa, Michigan, Nebraska, Oregon, Pennsylvania, South Carolina, and Tennessee.
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