                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1282
                               Filed April 27, 2016


JARROD DIERS,
    Petitioner-Appellant,

vs.

ROBERTTA COFFMAN,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson,

Judge.




      Jarrod Diers appeals from the decree granting physical care of his child to

the child’s mother, Robertta Coffman. AFFIRMED AS MODIFIED.




      Judy Johnson of Borseth Law Office, Altoona, for appellant.

      Van T. Everett of Whitfield & Eddy, P.L.C., Des Moines, for appellee.




      Heard by Vogel, P.J., Doyle, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                             2


DOYLE, Judge.

        Jarrod Diers appeals from the decree granting physical care of his child to

the child’s mother, Robertta Coffman. He contends he should have been granted

physical care of the child.       In the alternative, he contends he should have

received additional visitation. Both parties seek an award of appellate attorney

fees.   Because we conclude it is in the child’s best interests, we affirm the

custody provision of the decree granting Robertta physical care and modify the

visitation provision of the decree to increase Jarrod’s visitation.

        I. Background Facts and Proceedings.

        Jarrod and Robertta began a relationship in October 2011.1 At the time,

Jarrod was enlisted in the Army and stationed in New Mexico, while Robertta

lived in Ottumwa. Jarrod and Robertta spent approximately one week together in

Ottumwa in December 2011 while Jarrod was on leave for the holidays. Their

relationship ended in February 2012.

        Not long after her relationship with Jarrod ended, Robertta began a

relationship with Torrey Des Combaz.             When Robertta discovered she was

pregnant in March 2012, she assumed Torrey was the father based on the

estimated due date her doctor provided following an ultrasound. Robertta and

Torrey lived together, along with Robertta’s twelve-year-old child, and treated

Torrey as the new child’s father.

        The child was born in September 2012. Jarrod did not learn of Robertta’s

pregnancy or the birth until October 2012. The parties give differing accounts of

1
 At the time, Robertta was married to Lorentis Culver, though she told Jarrod she was
divorced. Robertta and Lorentis had married in 2008 and separated the following year,
but they were not divorced until after the birth of the child at issue in these proceedings.
                                          3


incidents that allegedly occurred from that point in time until the paternity action

was initiated:

      Jarrod suspected he was the child’s father and claims Robertta told him

       he was—a claim Robertta refutes.

      Jarrod further claims that in November 2012, he took a self-administered

       DNA test he bought on the internet, which confirmed he was the child’s

       father. Robertta denies that any DNA testing occurred at that time. There

       is no documentation of the results of that test in the record.

      Jarrod alleges that Robertta allowed him “visitation” with the child

       beginning when the child was six months old, with Jarrod allowed to see

       the child between one and three times per week during the day initially

       and overnight visitation beginning in July 2013. Robertta denies she gave

       Jarrod any visitation, testifying instead that she used Jarrod’s services as

       a “backup babysitter.”

      Jarrod claims Robertta presented him with a forged copy of the child’s

       birth certificate, which listed the child’s last name as Diers and identified

       Jarrod as the child’s father, as well as a forged copy of the child’s social

       security card, which lists the child’s last name as Diers. Copies of these

       documents were admitted into evidence at trial. Robertta denied forging

       any documents or providing forged documents to Jarrod. She testified

       that an Ottumwa police officer questioned her about the documents. It

       does not appear any charges were filed.

      Jarrod alleges Robertta tampered with the labels on the child’s

       prescription medication bottles to hide the fact the child’s last name was
                                       4


    not Diers. At trial, Robertta explained that prescription medication stored

    in a Ziploc bag spilled at her daycare provider’s home.            While she

    admitted she handwrote the child’s name on the medication, she denied

    writing the child’s last name as Diers and stated the label provided by the

    pharmacy was also contained in the bag.

   Although the parties agree Jarrod provided Robertta with money before

    this action was initiated, they provide different explanations as to why and

    disagree as to the amount. Jarrod claims he gave Robertta $12,500 in

    child support before the paternity action was initiated, and as proof he

    introduced into evidence at trial some of the checks he wrote to Robertta.

    While the checks admitted into evidence total only $5700, Jarrod alleges

    there were additional checks and cash exchanged. “Child support” is on

    the memorandum line of only two checks. The memorandum lines on the

    remaining checks are blank, which Jarrod attributes to Robertta’s act of

    “snatch[ing] these checks out of [his] hand” before he could fill out the line.

    Robertta refutes Jarrod’s claims, testifying instead that Jarrod loaned her

    money to pay off a medical debt when it threatened to harm her credit

    score.   She testified she did not receive all of the checks that Jarrod

    introduced at trial.   While Robertta could not recall the exact amount

    Jarrod gave her, she testified it was over $1000. She claims that either

    the memorandum lines were blank when she received the checks and

    Jarrod later wrote in “child support” or they were marked as “child support”

    and she never noticed.
                                          5


       On April 28, 2014, Jarrod served Robertta with a petition to establish

paternity, custody, visitation, and support of the child.       Robertta disallowed

contact between Jarrod and the child beginning the same month because she

alleges Jarrod refused to return the child to her unless she agreed to perform a

sex act with him. In July 2014, the results of a court-ordered DNA test confirmed

Jarrod to be the child’s father. Robertta testified she did not allow visitation after

receiving the DNA results because she feared that Jarrod would not return the

child to her care without a court order in place.

       Visitation resumed after a temporary order was entered in October 2014.

The order granted Robertta temporary physical care of the child and provided

Jarrod with visitation every Wednesday evening and alternating weekends.

Jarrod filed a motion to reconsider the temporary custody order, requesting his

visitation be increased, and Robertta responded with her own motion asking the

court to decrease visitation. The court denied both motions.

       In February 2015, Robertta moved in with her boyfriend, Chris.            Two

months later, Jarrod filed a motion to modify the temporary custody order

because Chris was being investigated for sexual abuse of the child.              The

investigation was initiated after Jarrod reported the alleged sexual abuse to the

Ottumwa Police Department and the Iowa Department of Human Services

(DHS). The DHS report determined the allegation was not confirmed. The police

officer investigating the matter reported to the guardian ad litem (GAL) that he did

not “find anything” and was closing the case. The court denied the motion to

modify.
                                        6


      This matter was tried in June 2015. At that time, Jarrod was living with his

fiancée, Heidi. Robertta continued to live with Chris. Although Robertta and

Chris were not engaged at the time of trial, the two had plans to marry.

      The GAL provided the trial court with a report containing her

recommendations for custody and visitation and testified at trial.         The GAL

recommended Robertta retain physical care of the child subject to Jarrod’s

visitation. The GAL recommended visits continue on alternating weekends but

with extended hours, beginning on Friday at 5:30 p.m. and ending on Monday at

5:30 p.m. Because weekend visitation would be expanded to end on Monday

evening and conflict arose during the exchanges, the GAL recommended the

weekly mid-week visitation be discontinued. The GAL also recommended four

weeks of summer visitation but added “those four weeks should be separated.

That visitation should be no more than two weeks in length. And then separated

where [the child] would go back to [Robertta], and then another two weeks.”

      On June 25, 2015, after hearing from the parties and their witnesses, the

district court entered its decree. It found both parents were capable and loving

with significant support systems to assist them in raising the child. However, the

court noted the child had been in Robertta’s care since birth. It further found the

child was closely bonded with Robertta’s twelve-year-old daughter. The court

granted Robertta physical care and ordered Jarrod to pay Robertta $653 per

month in child support. Jarrod was granted liberal visitation to be determined by

the parties with a default visitation schedule provided in the event the parties

could not agree on visitation. The default visitation schedule eliminated the mid-

week visits and awarded Jarrod visitation on alternating weekends, beginning at
                                         7


6:00 p.m. on Friday and ending at 6:00 p.m. on Sunday.           Jarrod was also

awarded holiday visitation and three non-consecutive weeks of visitation in the

summer. The court further ordered the child’s surname be changed to Diers.

      II. Scope and Standard of Review.

      We review custody determinations de novo. McKee v. Dicus, 785 N.W.2d

733, 736 (Iowa Ct. App. 2010). We are not bound by the district court’s factual

findings, though we give them weight. Id. This is especially true with regard to

determinations of witness credibility because the district court has the ability to

listen to and observe the parties and their witnesses. Id.

      III. Physical Care.

      Our overriding consideration in awarding custody is the child’s best

interests. Id. The goal is to place the child in the care of the parent who is best

able to minister to the child’s long-range best interests. See In re Marriage of

Winter, 223 N.W.2d 165, 166 (Iowa 1974). In making this determination, we

consider the list of factors set forth in Iowa Code section 598.41 (2013), along

with other relevant factors. See In re Marriage of Hansen, 733 N.W.2d 683, 696

(Iowa 2007). We seek to place the child in the environment most likely to foster

physical and mental health, as well as social maturity. Phillips v. Davis-Spurling,

541 N.W.2d 846, 847 (Iowa 1995).

      Jarrod argues he is better equipped than Robertta to minister to the child’s

best interests focusing on three factors we consider in determining physical

custody: a parent’s alienation of the child from the other parent, a parent’s moral
                                             8


misconduct, and a parent’s history as the child’s primary caretaker.2 We address

each of these factors in turn.

       A. Alienation of the child from the other parent.

       Jarrod first cites what he considers to be Robertta’s attempt to alienate the

child from him as a factor that weighs in favor of granting him physical care of the

child. He cites to Robertta’s decision to deny him visitation with the child and

what he characterizes as Robertta’s failure to include him in decision-making with

regard to the child as evidence of her attempt at alienation.

       Iowa Code section 598.41(1)(c) states: “The court shall consider the

denial by one parent of the child’s opportunity for maximum continuing contact

with the other parent, without just cause, a significant factor in determining the

proper custody arrangement.” The undisputed evidence shows Jarrod did not

receive visitation with the child from approximately April 2014 through October

2014. Jarrod claims Robertta’s decision to deny him visitation with the child

during that time militates against awarding her physical care.

       Robertta claims she refused to provide Jarrod visitation because Jarrod

refused to return the child at the end of a visit in April 2014 unless she agreed to

perform a sex act with him. At that time, Jarrod’s paternity had not yet been

established. After the results of the DNA test revealed Jarrod to be the child’s

father in July 2014, visitation did not resume. Robertta testified she was afraid



2
  Jarrod argues the trial court did not give enough weight to the first two of these factors
while giving too much weight to the third. Because our review is de novo, we need not
address the weight the trial court gave the evidence. See In re Lyman, No. 07-1590,
2008 WL 2042614, at *1 (Iowa Ct. App. May 14, 2008). Instead, we make our
determination anew based on the record before us but make special note of the factors
to which Jarrod draws our attention.
                                         9


that if she allowed Jarrod to take the child for a visit, Jarrod would not return the

child to her care. However, the evidence is undisputed that once the temporary

order regarding custody and visitation was entered, Robertta abided by it. There

is nothing to suggest she will not continue to follow any visitation schedule

ordered by the court.

       Jarrod cites other incidents as evidence Robertta attempted to alienate the

child from him. Specifically, he claims Robertta systematically excluded him from

parental decision-making with regard to the child, failed to give him proper notice

of doctor’s appointments, and failed to provide him with a copy of the child’s

insurance card.    He also claims Robertta’s family is unwilling to support his

relationship with the child.

       The evidence shows the parties’ relationship has been contentious since

their relationship ended. This is evident in the tone of an email Jarrod sent

Robertta in October 2012 after learning she had given birth to a child. Jarrod

wrote: “When am I going to get my stuff back? Hows the new baby and whos

baby is it? The guy you cheated on me with? All i have to say is wow you work

fast lol.” By all accounts, the exchanges of the child that accompanied visitation

were emotionally-charged. While each party blames the other for the conflict, the

evidence shows neither parent is without fault.

       We note Jarrod’s contribution to the conflict between the parties by

making accusations against Robertta and her family. For instance, during the

investigation into Chris’s alleged sexual abuse of the child, Jarrod and his

fiancée, Heidi, expressed concern regarding Robertta’s overall care of the child,

stating the child arrived at visitations wearing dirty clothes and soiled diapers and
                                          10


often had cuts and bruises that they felt were not appropriate. Jarrod stated he

believed that Robertta and her family were beating the child “to make [the child]

not like [him],” and he informed the DHS worker he planned to keep the child at

the end of the next visit for this reason rather than returning the child to

Robertta’s care as set forth in the temporary order.          Jarrod and Heidi also

expressed their concern the child was being “emotionally abused” in Robertta’s

care, stating the child “appeared to be in emotional distress” and demonstrated

behaviors that were not age appropriate. Although the worker “asked multiple

times what emotional distress and [the child] not developing at an age

appropriate level meant to Heidi and Jarrod,” neither Jarrod nor Heidi elaborated,

though they “continued to make these statements with no further information.”

The DHS worker opined that none of the pictures Jarrod and Heidi had taken of

the scratches and bruises they identified on the child at the start of each visit

“stood out as patterned injuries or injuries which could be suspect of child

abuse.” Those who observed the child in both parents’ homes, like the DHS

worker and the GAL, as well as those who had close contact with the child during

the time period in question, like the child’s pediatrician and daycare provider, saw

no evidence of abuse or suggestion of alienation by either party. Simply put,

Jarrod’s claims regarding Robertta are not credible.3

       The evidence shows both parents have at times behaved in a manner

contrary to the child’s best interests. Each has made accusations against the

3
  We also note our concerns about Jarrod’s testimony at trial. While Jarrod was able to
testify with great specificity on direct examination when questioned by his lawyer, his
testimony was much less definite on cross-examination, when Jarrod frequently could
not recall specific details about events he had just testified about moments earlier.
Jarrod’s behavior at trial negatively impacts his credibility.
                                         11


other while blaming the other for the discord. While Robertta’s behavior has not

been admirable at all times, it has not been worse than Jarrod’s, leaving the

parties on even footing with regard to this factor.

        B. Moral misconduct.

        Jarrod next argues Robertta’s moral misconduct weights against granting

her physical care of the child. He cites her failure to inform him of her pregnancy,

as well as his allegation that she intentionally led two men to believe they were

the child’s father.

        We disagree with Jarrod’s assessment of the evidence regarding

Robertta’s behavior before paternity was established. Given the circumstances,

it was not unreasonable for Robertta to believe Torrey was the child’s father.

Robertta had already begun a relationship with Torrey when she learned she was

pregnant, and the projected due date provided by her doctor indicated the child

would have been conceived after Jarrod returned to New Mexico.               Torrey

believed he was the father’s child and acted as the child’s father. He was listed

as the child’s father on the birth certificate and had the child’s name tattooed on

his arm.    Despite Jarrod’s claims he had visitation with the child, including

overnight visits beginning in July 2013, Torrey was unaware of any role Jarrod

played in the child’s life. Torrey did not discover the possibility that someone

else might have fathered the child until the paternity action was initiated in April

2014.    There is insufficient credible evidence to show Robertta intentionally

misled either Jarrod or Torrey regarding paternity.

        Even assuming Robertta misled Jarrod regarding the child’s paternity, this

factor alone is not decisive of the matter of custody.      See In re Marriage of
                                          12

Hornung, 480 N.W.2d 91, 93-94 (Iowa Ct. App. 1991) (noting that while a

parent’s “moral misconduct” is a consideration in making custody determinations,

it is only one factor to be considered). Our governing consideration must be the

child’s best interests. See In re Marriage of Ballinger, 222 N.W.2d 738, 740

(Iowa 1974). Custody determinations are not made to reward one parent or to

punish the other. See id. Instead, we must determine which parent can most

effectively provide for the child’s long-range best interests. See id. The trial

court found the child “is healthy, happy, and thriving in Robertta’s care.” As such,

the court determined granting Robertta physical care was in the child’s best

interests, and we agree. See In re Marriage of Dawson, 214 N.W.2d 131, 133

(Iowa 1974) (determining children’s best interests were served by granting the

mother physical care where the children were “healthy and well cared for,” and

“thrived” while in their mother’s care, even though her moral misconduct and

dishonesty about her conduct while testifying “weighed heavily against her,”

because the mother’s conduct had to be balanced “against the best long-run

prospects of the children”).

       C. Past caretaker.

       The last factor Jarrod cites is Robertta’s role as the child’s physical

caretaker. While this factor weighs in favor of granting Robertta physical care of

the child, Jarrod argues against giving the factor more weight than it deserves.

       “The role of primary caretaker is . . . critical in the development of children,

and careful consideration is given in custody disputes to allowing children to

remain with the parent who has been the primary caregiver.” In re Marriage of

Wilson, 532 N.W.2d 493, 495 (Iowa Ct. App. 1995). Although the parent who
                                        13


has traditionally served as the child’s caretaker will not necessarily be granted

physical care of the child, id., it is a factor we must consider, Iowa Code

§ 598.41(3)(d) (listing “[w]hether both parents have actively cared for the child

before and since the separation” as a factor to consider in determining custody).

Our courts have recognized the importance of maintaining the child’s emotional

stability and the importance of the stability in the relationship between the child

and the child’s caretaker. See In re Marriage of Williams, 589 N.W.2d 759, 762

(Iowa Ct. App. 1998).

       D. Conclusion.

       After weighing Robertta’s history as the child’s caretaker along with other

relevant factors before us and giving the appropriate deference to the trial court,

we conclude the child’s best interests are served by placing the child in the care

of Robertta. Accordingly, we affirm the child custody provision of the decree.

       IV. Visitation.

       Jarrod argues in the alternative that the visitation awarded by the trial

court does not assure the child has maximum contact with him. Specifically, he

argues weekend visitation should be extended to include some weekday time

prior to the child entering school, specifically, Wednesdays from 4:00 p.m. until

8:00 p.m. each week.      He requests every other weekend visitation begin at

5:00 p.m. on Thursday and end at 5:00 p.m. on Sunday. He also requests he

receive additional visitation in the summer, noting the fact he does not have a

nine-to-five job allows him to spend more time with the child. Jarrod would like

the child in his care “for a majority of the summer or in the alternative alternate

full weeks.”
                                        14


      As with custody determinations, our primary concern in determining

visitation rights is the best interests of the child. In re Marriage of Stepp, 485

N.W.2d 846, 849 (Iowa Ct. App. 1992). Generally, liberal visitation rights are in

the child’s best interests. Id. We do not consider the best interests of the parent

seeking visitation. In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.

App. 1994).

      Here, the trial court ordered liberal visitation between Jarrod and the child

to the extent agreed upon by the parties. We note the default visitation schedule

set forth in the decree is the minimum period of visitation allowed; the parties

may agree to a more expansive visitation schedule and are expected to actively

encourage positive relations between the other parent and the children. See In

re Marriage of Toedter, 473 N.W.2d 233, 235 (Iowa Ct. App. 1991). Although the

parties have the discretion to increase the amount of visitation between Jarrod

and the child, we conclude the default visitation schedule provided in the decree

does not provide the opportunity for maximum continuing physical and emotional

contact with both parents, as required by Iowa Code section 598.41(1)(a). To

offset the termination of midweek visits, we modify the default visitation schedule

to adopt the GAL’s recommendation and extend weekend visits to end at 5:30

p.m. on Monday when school is not in session or at the commencement of the

school day when the child’s school is in session.

      We also modify the summer visitation provided in the decree to instead

grant Jarrod the ability to extend four of his weekend visits to end at 5:30 p.m.

the following Friday. This modification grants Jarrod four week-long visits with
                                        15


the child, while guaranteeing the child one uninterrupted week in Robertta’s care

between visits.

       V. Appellate Attorney Fees.

       Both parties request they be awarded $8000 in appellate attorney fees.

Whether to award appellate attorney fees is within our discretion.       Spiker v.

Spiker, 708 N.W.2d 347, 360 (Iowa 2006). An award of appellate attorney fees

depends on three factors: (1) the needs of the party making the request, (2) the

ability of the other party to pay, and (3) whether the party making the request was

obligated to defend the trial court’s decision on appeal. Id. We decline to award

either party attorney fees.

       Two-thirds of the costs of the appeal are taxed to Jarrod and one-third is

taxed to Robertta.

       AFFIRMED AS MODIFIED.
