                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1138
                              Filed March 11, 2015


LANE KYLE MCMULLEN,
     Plaintiff-Appellee,

vs.

ALISON MICHELLE ISENHART,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Marsha Bergan,

Judge.



      A mother appeals a district court order placing physical care of her child

with the child’s father. AFFIRMED.




      Caitlin L. Slessor and Allison M. Heffern of Shuttleworth & Ingersoll,

P.L.C., Cedar Rapids, for appellant.

      M. Victoria Cole of M. Victoria Cole Law Firm, P.C., Cedar Rapids, for

appellee.



      Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, P.J.

       A mother appeals a district court order placing physical care of her child

with the child’s father.

I.     Background Facts and Proceedings

       Alison Isenhart and Lane McMullen became romantically involved in 2009.

They had a child in 2011. The parents had a rocky relationship, which continued

intermittently for several months after the child’s birth. The parties permanently

separated in early 2012.

       Following the separation, Isenhart filed a petition for relief from domestic

abuse. The district court issued a civil protective order but cancelled the order

after a hearing.

       Meanwhile, McMullen filed a petition for custody of the child. The district

court granted Isenhart temporary physical care, subject to visitation with

McMullen.

       In the interim, the parents met to exchange property and tensions

escalated to the point where McMullen placed his hands on Isenhart. Isenhart

reported the incident to police, who charged McMullen with assault causing

bodily injury (domestic abuse).1 The district court entered a criminal no-contact

order. Although the order did not prohibit McMullen from having contact with the

child, Isenhart refused to allow visits until after the court issued a temporary




1
  At trial on the custody petition, McMullen’s attorney asked the district court to take
judicial notice of the criminal file. Isenhart’s attorney stated she did not object and the
district court agreed to take judicial notice of the entire file. The court asked McMullen’s
attorney to ensure the court obtained the file. Portions of the file are included in the
appendix.
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custody order. McMullen was eventually acquitted of the assault charge and the

criminal no contact order was cancelled.

      The case proceeded to trial on the custody petition. After some delay, the

district court issued an order granting McMullen physical care of the child.

Isenhart appealed.

II.   Physical Care

      Isenhart contends the district court should have granted her physical care

of the child. The governing consideration is the best interests of the child. Iowa

R. App. P. 6.904(3)(o).    The analysis is the same whether the parents are

married or unmarried. See Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1998).

Our review is de novo. Iowa R. App. P. 6.907. We give weight to the district

court’s credibility findings but we are not bound by them.         Iowa R. App. P.

6.904(3)(g).

      Those credibility findings favored McMullen.         As a preliminary matter,

Isenhart contends we should disregard them in light of the court’s delay in issuing

the custody order. In her view, the court’s memory of the trial testimony faded

with time, rendering the credibility assessment suspect.

      To the contrary, the court’s detailed findings of fact closely tracked the trial

transcript. Accordingly, we see no reason to discount the credibility findings in

favor of McMullen. To the extent McMullen’s version of events differed from

Isenhart’s version—and this happened often—we give weight to McMullen’s

version.

      On the merits, Isenhart contends she should have been granted physical

care of the child because she served as the child’s primary caretaker prior to
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issuance of the final custody order. See Iowa Code § 598.41(3)(d) (2013). A

person’s primary caretaking role certainly is a factor in the analysis.     In re

Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996). But it does not

ensure an award of physical care. Id. While acknowledging Isenhart “provided

more of [the child’s] day-to-day care than” McMullen, the district court found

McMullen, “exercised regular visitation, and . . . routinely requested more time

with his daughter.”   The court further found an absence of “testimony that

[McMullen] provided anything other than excellent care for [the child] during the

times that he had her in his care.”      The court finally found Isenhart would

undermine McMullin’s relationship with the child.    The record supports these

findings.

       McMullen testified he asked for additional time with his daughter after the

temporary orders were entered but could “think of very few” requests Isenhart

granted. He cited his attempts to pick-up the child early from daycare, attempts

that were stymied by Isenhart, who provided the daycare center with the

temporary custody order and, according to the daycare provider, told staff not to

permit early pick-ups. He also testified Isenhart refused to alter the visitation

schedule to accommodate special circumstances, forcing him to forfeit visits.

       McMullen also testified he tried to help with the child “any way [he] could

possibly help.” He did laundry and dishes and cared for the child, but stated his

involvement was only as permitted by Isenhart. For example, he asked Isenhart

“on many occasions” to work together on things like potty training, but Isenhart

declined to “respond” or refused to “tell [him] what she [was] doing” so he could

“keep it consistent with what she is doing.” Her view, according to McMullen,
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was “I don’t care what you think, I’m going to do what I want to do.”             He

continued, “[D]ecisions are made by [Isenhart]. I just have to go along with them.

I get asked my opinion. If I give it and it differs from hers, it doesn’t matter.” In

fact, when McMullen “crossed” Isehnart, Isenhart kicked him out of her

condominium. Based on this record, we agree McMullen took an active interest

in the child, notwithstanding Isehart’s role as primary caretaker.

       We also agree with the district court’s finding that Isenhart failed to

support McMullen’s relationship with the child. See Iowa Code § 598.41(3)(e).

The instances cited above provide some indication of her behavior. In addition,

Isenhart refused to let McMullen add the child to his health insurance plan,

denied McMullen visits for approximately six weeks before the temporary custody

order was entered, failed to keep McMullen informed of the child’s medical

appointments, and made unsubstantiated allegations of domestic abuse against

him. In short, Isenhart minimized McMullen’s parental role. See Kunkel, 555

N.W.2d    at   253   (finding   mother’s   “contentious   disposition   and   hostile

temperament incompatible with the considerable rights and responsibilities

attending an award of physical care”). This factor supports the district court’s

decision to grant McMullen physical care of the child.

       We reach this conclusion notwithstanding the close bond the child shared

with her half-brother, who was in Isenhart’s physical care. Separation of half-

siblings is an important consideration. See In re Marriage of Quirk-Edwards, 509

N.W.2d 476, 480 (Iowa 1993). But, as the district court explained, the very real

likelihood that Isenhart would undermine McMullen’s relationship with the child
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justified the separation. Fortunately, Isenhart made efforts to preserve the bond

by ensuring weekday and weekend time with both children.

         We affirm the district court order granting McMullen physical care of the

child.

III.     Appellate Attorney Fees

         Isenhart seeks an award of $2500 in appellate attorney fees. Because

she did not prevail, we decline her request.

         AFFIRMED.
