                   IN THE COURT OF APPEALS OF IOWA

                                 No. 15-1967
                             Filed June 29, 2016


ROBERT JOSEPH DEAN,
    Plaintiff-Appellee,

vs.

LARA WINTER BARTUSEK,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Story County, Steven J. Oeth,

Judge.



       The mother of a five-year-old boy challenges the district court’s order

granting physical care to his father and, alternatively, seeks extraordinary

visitation. AFFIRMED AS MODIFIED AND REMANDED.



       Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton,

for appellant.

       Elizabeth A. Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des

Moines, for appellee.



       Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

        After comparing the parents’ work schedules, the district court awarded

physical care of five-year-old A.B.D. to his father, Robert Dean, subject to

“reasonable parenting time” for his mother, Lara Bartusek. On appeal, Bartusek

asks us to place physical care of A.B.D. with her. If Dean retains physical care,

Bartusek alternatively seeks extraordinary visitation of three weekends per month

and six weeks in the summer. Because Dean has been “significantly in charge of

A.B.D.’s day-to-day affairs for the past two years,” like the district court, we

decline to upend that routine.      But we do find extraordinary visitation as

requested by Bartusek would be in A.B.D.’s best interests.         Accordingly, we

remand for modification of the order on visitation and child support.

        I.       Facts and Prior Proceedings

        Dean and Bartusek were never married, but lived together in Clear Lake

when A.B.D. was born in October 2010. When A.B.D. was six-months old, Dean

moved to Ames to attend Iowa State University. Dean earned his bachelor’s

degree in May 2015 and two months later started working at Principal Financial

Group in Des Moines, earning $42,600 per year. He commutes from Ames, and

he works weekdays from 8:00 a.m. to 4:45 p.m. He has discussed the possibility

of moving to Ankeny to shorten his commute, but he had no definite plans at the

time of trial.

        Dean served in the Army from 2004 until 2008, including a fifteen-month

deployment in Iraq. After returning from his service, he was diagnosed with

anxiety, depression, and posttraumatic stress disorder (PTSD).          As a result of

that diagnosis, he receives disability benefits from the Veteran’s Administration in
                                            3


the amount of $13,600 per year. Dean testified regarding two instances in 2008

and 2009 when he sought in-patient mental health treatment for PTSD and

suicidal thoughts.   Dean testified he takes medication and has been successful

in treating his mental health conditions.

       Bartusek started a career in law enforcement as a dispatcher and jailer

when she was nineteen-years old.            She has an associate’s degree in law

enforcement from North Iowa Area Community College, among other

certifications and credits.   She graduated from the Iowa Law Enforcement

Academy and has been working as a police officer in Eagle Grove since 2013.

She earns about $35,000 per year as a police officer. Her hours are 6:00 p.m. to

6:00 a.m. on a rotating schedule of five days on and five days off, then four days

on and four days off. Bartusek testified when she works the night shift she has

“people that would come [to her home] and basically be there while he’s

sleeping.” Her extended family lives about an hour away in Mason City.

       Bartusek obtained a domestic abuse protective order in March 2012, after

Dean engaged in “incessant texting and calling wanting to know where [she] was

or who she was with” and then pushed down the door of her home in Clear Lake

when she would not answer him. During the year-long duration of the order,

Bartusek allowed Dean to maintain contact with A.B.D. Shortly after the order

expired, Bartusek moved to Eagle Grove so Dean could connect with A.B.D.

more easily.    At that time in 2013, Dean assumed more of the childcare

responsibilities. A.B.D. lives with Dean during the week, attending daycare in

Ames, and Bartusek exercises regular weekend visitations, as well as coming to

Ames on her days off. Bartusek also testified to an incident in December 2014 or
                                         4


January 2015 when Dean prevented her from saying goodbye to A.B.D. and

threatened to “call the cops” to report her for trespassing and assault.

         Shortly on the heels of that incident, Dean filed a petition to establish

custody, visitation, and child support. The district court held a hearing on the

matter on October 21, 2015, taking testimony from both parents and A.B.D.’s

maternal grandmother. The court issued an order on custody, visitation, and

support on October 23, 2015. In its findings of fact, the court stated both parents

were “good people” and were “generally supportive of each other’s parenting.”

The court awarded joint legal custody and granted physical care of A.B.D. to

Dean, “based significantly on the conclusion that [his] schedule” was more

“advantageous for raising a child.” The court noted Bartusek was “a young police

officer. Young police officers generally get assigned night hours.         The court

understands that requirement. It is just that ‘having people there while A.B.D.

sleeps’ is not as good as having a parent available.”

         The court considered Bartusek’s argument that she should be the primary

caregiver in light of Dean’s acts of domestic violence that resulted in her

obtaining a protective order in 2012 and her ongoing concerns about Dean’s

mental health. But the court did not find her concerns decisive on the issue of

physical care. The court noted Dean had been “significantly in charge of A.B.D.’s

day-to-day affairs” for the past two years—including daycare, doctor’s

appointments, and T-ball—and by both parents’ estimation, A.B.D. was “doing

well.”

         The grant of physical care to Dean was subject to Bartusek having

“reasonable parenting time.” The court stated it was “hopeful” the parents could
                                             5


agree on a parenting schedule consistent with Bartusek’s rotating work schedule

that would provide for her “to continue having significant physical and emotional

contact with A.B.D.” In the event the parents could not agree to a schedule, the

court ordered the following scheduled visitation:

                A. When A.B.D. is in school/daycare:
                        a. Alternating weekends from Friday evening at 5:00
         p.m. until Sunday evening at 5:00 p.m.
                        b. Every Wednesday evening from 4:00 p.m. to 7:00
         p.m. If Lara has the day off, she can keep A.B.D. overnight and
         return him to school or daycare on Thursday morning. Lara must
         provide all transportation for the mid-week parenting time.
                B. Summer months when A.B.D. is not in school:
                        a. From 6:00 p.m. of the day Lara completes her 4 or
         5 day rotating schedule until 5:00 p.m. on the day before Lara
         begins her 4 or 5 day work schedule.

         Bartusek now appeals.

         II.    Scope and Standard of Review

         We employ the same legal analysis in resolving questions concerning the

custody of a child born to unmarried parents as we do in the case of divorcing

parents. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). Because this

proceeding was in equity, our review is de novo. Iowa R. App. P. 6.907. We are

not bound by the district court’s factual findings, but give weight to them.

Lambert, 418 N.W.2d at 42.

         III.   Analysis of Mother’s Claims

         A. Physical Care

         When deciding the question of physical care we look to the factors listed in

Iowa Code section 598.41(3) (2015),1 and In re Marriage of Winter, 223 N.W.2d



1
    The statutory factors in Iowa Code section 598.41(3) include:
                                             6


165, 166-67 (Iowa 1974),2 to assess which parent is more likely to provide an

environment ensuring A.B.D.’s physical and mental health and bringing him to


                a. Whether each parent would be a suitable custodian for the
       child.
                b. Whether the psychological and emotional needs and
       development of the child will suffer due to lack of active contact with and
       attention from both parents.
                c. Whether the parents can communicate with each other
       regarding the child’s needs.
                d. Whether both parents have actively cared for the child before
       and since the separation.
                e. Whether each parent can support the other parent’s relationship
       with the child.
                f. Whether the custody arrangement is in accord with the child’s
       wishes or whether the child has strong opposition, taking into
       consideration the child’s age and maturity.
                ....
                h. The geographic proximity of the parents.
                i. Whether the safety of the child, other children, or the other
       parent will be jeopardized by the awarding of joint custody or by
       unsupervised or unrestricted visitation.
                j. Whether a history of domestic abuse, as defined in section
       236.2, exists. . . .”
2
  The Winter, 223 N.W.2d 165, factors include:
                1. The characteristics of each child, including age, maturity,
       mental and physical health.
                2. The emotional, social, moral, material, and educational needs
       of the child.
                3. The characteristics of each parent, including age, character,
       stability, mental and physical health.
                4. The capacity and interest of each parent to provide for the
       emotional, social, moral, material, and educational needs of the child.
                5. The interpersonal relationship between the child and each
       parent.
                6. The interpersonal relationship between the child and its
       siblings.
                7. The effect on the child of continuing or disrupting an existing
       custodial status.
                8. The nature of each proposed environment, including its stability
       and wholesomeness.
                9. The preference of the child, if the child is of sufficient age and
       maturity.
                10. The recommendation of the attorney for the child or other
       independent investigator.
                11. Available alternatives.
                12. Any other relevant matter the evidence in a particular case
       may disclose.
                                        7

social maturity. See In re Marriage of Hansen, 733 N.W.2d 683, 695-96 (Iowa

2007). Additionally, “the factors of continuity, stability, and approximation are

entitled to considerable weight.” Id. at 700. In reaching our decision, gender is

irrelevant and neither parent has a “greater burden than the other in attempting to

gain custody.” In re Marriage of Bowen, 219 N.W.2d 683, 689 (Iowa 1974).

        Bartusek acknowledges both parents have acted as A.B.D.’s primary

caretaker at different times during his life, with A.B.D. being primarily in Dean’s

care since September 2013. But she contends the district court erred in placing

physical care with Dean because she has been the more stable parent overall.

She points to her continuous employment, steady living arrangements, and

regular financial contributions to A.B.D.’s welfare. She contrasts those factors

with Dean’s numerous part-time jobs, return to college, short amount of time in

his current employment, and proposed plan to relocate closer to his work. She

also emphasizes Dean’s mental health issues and his past hospitalizations.

Bartusek also renews her argument that she has been a “long-time victim of

Robert’s aggression, intimidation, and harassment.”3      At the same time, she

contends she is committed to ensuring maximum contact between A.B.D. and

Dean.

        Dean responds, recently he has been A.B.D.’s primary caretaker and the

district court was correct in maintaining the continuity of that arrangement. He

denies a “history” of domestic violence against Bartusek, though at trial he

3
 Bartusek offered into evidence some coarse emails she received from Dean when she
was trying to discuss A.B.D.’s visitation. Dean acknowledged the crassness of the
communication, but asserted he sent the messages at a time the couple was
maintaining a sexual relationship and he never intended to deny Bartusek time with
A.B.D.
                                          8


acknowledged the incidents that led to the imposition of the protective order. On

the issue of his mental health, Dean is candid about his hospitalizations before

the birth of A.B.D. But he explained he has addressed his mental health by

seeking professional treatment and taking medications. Dean also points to the

district court’s specific factual finding that his treated conditions do not “impact

his ability to parent A.B.D.”

       After our de novo review of the record, we agree with the district court that

both parents have been and would be suitable guardians for A.B.D.              Both

parents, who are now in their early thirties, have ensured A.B.D. is well cared for

and his talents are nurtured.         Both parents have demonstrated a strong

commitment to his well-being and, for the most part, have been good role

models. We are also heartened that both parents have taken steps to foster

A.B.D.’s positive relationship with the other.

       We do not take lightly Dean’s threatening actions toward Bartusek,

resulting in the 2012 protective order. But we do not find his actions rise to the

level of a “history” of domestic violence under section 598.41(3)(j). Cf. In re

Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997) (discussing effect of

domestic violence on joint custody award).       On the related issue of Dean’s

PTSD, we believe the record shows Dean is attuned to his difficulties and has

actively strived to address his mental health. Like the district court, we do not

find his diagnosis disqualifies him from providing physical care to A.B.D. Indeed,

Bartusek agreed to Dean taking primary care of A.B.D. in 2013 after the

expiration of the protective order.    The record does not support her assertion

that Dean “bullied” her into allowing him more time with A.B.D.
                                          9


       When both parents are suitable candidates for an award of physical care,

it is reasonable for the court to choose the parent with the work schedule that

provides more flexibility and is better suited to child care. See, e.g., Agyepong-

Yeboah v. Roeder, No. 14-1882, 2015 WL 7575493, at *4 (Iowa Ct. App. Nov.

25, 2015); In re Marriage of Miller, No. 14-0468, 2015 WL 3885355, at *3 (Iowa

Ct. App. June 24, 2015); In re Marriage of Clark, No. 12-2192, 2013 WL

3291834, at *3 (Iowa Ct. App. June 26, 2013). We agree with the district court’s

assessment that Dean’s conventional work hours were more conducive to

providing physical care for A.B.D. than were Bartusek’s rotating-night-shift

schedule as a police officer. Granting physical care to Dean will also be less

disruptive to the child’s routine established before the hearing. We affirm the

district court’s physical care determination.

       B. Extraordinary Visitation

       Bartusek alternatively asks for extraordinary visitation in the form of three

weekends per month and six weeks in the summer. Bartusek points out Dean

testified, if he were awarded physical care, she should have visitation with A.B.D.

for three weekends per month at her house.          Dean changes his position on

appeal, contending Bartusek’s request for three weekends per month during the

school year “would deny A.B.D. the opportunity to spend weekend time with his

father.”

       We agree with Bartusek that she is entitled to additional time with A.B.D.

See Iowa Code § 598.41(a) (stating “insofar as is reasonable and in the best

interest of the child,” the court “shall order” liberal visitation rights, “which will

assure the child the opportunity for the maximum continuing physical and
                                          10


emotional contact with both parents after [separation or divorce], and which will

encourage parents to share the rights and responsibilities of raising the child”).

The district court expressed its hope the parents would agree on parenting time

consistent with Bartusek’s rotating schedule but imposed a traditional alternating

weekend and midweek visitation schedule in the event they did not reach such

an agreement.

       Given Bartusek’s rotating work schedule, we believe it would be in

A.B.D.’s best interest to grant visitation for an additional weekend per month

during the school year to maximum his continuing contact with his mother. The

additional visitation will more accurately approximate the parents’ voluntary

caregiving arrangement before the custody order. We also find it appropriate to

increase Bartusek’s visitation to six weeks in the summer to allow more

interaction between A.B.D. and his mother, as well as with her extended family.

       We remand to the district court to modify the visitation schedule and to

recalculate child support in light of the additional parenting time allocated for

Bartusek. If the award of child support needs to be recalculated due to the

application of the extraordinary visitation credit, the district court is to modify the

obligation “based on the present financial circumstances of the parties and the

child support guidelines.” See In re Marriage of Hoffman, 867 N.W.2d 26, 37

(Iowa 2015).

       IV.     Appellate Attorney Fees

       Finally, Dean asks for $1500 toward his appellate attorney fees.           In a

custody proceeding between parents who have never married, the court may

award the prevailing party reasonable attorney fees. Iowa Code § 600B.26.            In
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this case, Dean prevailed on the issue of physical care but not on the issue of

extraordinary visitation. We also note he receives more annual income than

does Bartusek. On these facts, we decline to award appellate attorney fees.

Costs on appeal shall be split equally between the parties.

      AFFIRMED AS MODIFIED AND REMANDED.
