                     IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0139
                              Filed October 15, 2014

Upon the Petition of
LATRAVIUS FENN,
      Petitioner-Appellant,

And Concerning
KIMBERLY BALDWIN,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Clinton County, John D. Telleen,

Judge.



       A father appeals the district court order placing two of the parties’ children

in the physical care of the mother with the understanding the children would

reside with the maternal grandparents.         AFFIRMED AS MODIFIED AND

REMANDED.



       Adrienne C. Williamson and David M. Pillers of Pillers & Richmond,

Clinton, for appellant.

       Eric D. Puryear, Davenport, until his withdrawal, then Kimberly Baldwin,

Clinton, appellee pro se.

       Clayton E. Grueb, Davenport, guardian ad litem for children.



       Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
                                          2



MULLINS, J.

       A father appeals the district court order placing two of the parties’ children

in the physical care of the mother with the understanding the children would

reside with the maternal grandparents. We remand to the district court for an

order gradually transitioning the twins into the physical care of the father. We

also remand for a modification of child support, medical support, and visitation in

light of the modification of physical care for the twins. We affirm the provision

requiring the father to pay $2000 for the mother’s trial attorney fees.

       I.     Background Facts & Proceedings

       Latravius Fenn and Kimberly Baldwin are the parents of a girl, who was

born in May 2003, and twin boys, who were born in May 2004.                Latravius

currently lives in the Chicago, Illinois area. Kimberly lives in Clinton, Iowa. The

parents were never married to each other, but lived together in Iowa from the

time the oldest child was born until the summer of 2006, when Latravius moved

to Georgia. During the time the parties lived together they jointly parented the

children. The twin boys have been diagnosed with autism. They have spent

much of their lives in the care of the maternal grandparents, Raymond and

Barbara Baldwin, also in Clinton.

       After Latravius moved to Georgia he regularly exercised visitation with the

children, especially with the oldest child.    As time went on, he had difficulty

contacting the maternal grandparents and making arrangements with them for

visitation with the twins. Latravius paid money for the support of the children to

Kimberly and the maternal grandparents, although there was no court order in
                                          3



place requiring him to pay support.1 Through the Child Support Recovery Unit

Latravius was ordered to pay cash medical support of $169 per month, and he

was current on this obligation.

       On August 9, 2012, Latravius filed a petition seeking to establish custody,

physical care, and child support for the oldest child. The district court entered an

order on temporary matters on August 30, 2012, placing the oldest child in the

physical care of Latravius. The court found Kimberly had failed to support the

relationship between Latravius and the child. Kimberly was granted visitation on

alternating weekends and holidays. The court found Kimberly was unemployed

and did not require her to pay child support.

       On September 11, 2013, Latravius amended his petition to additionally

request physical care of the twin boys. A guardian ad litem (GAL) was appointed

for the children. The GAL recommended the oldest child remain in the physical

care of Latravius. He recommended the twin boys remain in the physical care of

Kimberly, but stated that after Latravius was reintroduced to them and his

visitation increased, Latravius could possibly petition the court for modification of

the physical care provision of the paternity decree.

       A hearing was held beginning on November 19, 2013. Latravius testified

he was thirty-four years old and lived in Carroll Stream, Illinois, a suburb of

Chicago. He has a college degree, is employed as a hosting engineer for Huron

Consulting, and earns about $65,000 per year. Latravius is married to Britta,



1
    He paid a total of about $17,000 to Kimberly and about $3100 to the maternal
grandparents. Latravius also testified he had purchased items for the children, such as
shoes, jackets, and diapers.
                                            4



who had two children from a previous relationship who live with them.                 He

testified the oldest child was doing very well in his care. She is enrolled in private

school with Britta’s two children and is active in extracurricular activities, such as

church, basketball, and Girl Scouts. He stated Kimberly was not willing to accept

responsibility for the twin boys and wanted the maternal grandparents to take

care of them, but he was willing to accept the responsibility for them. He was

also concerned Kimberly and the maternal grandparents did not seek enough

outside services for the twins’ autism.

       Kimberly was thirty-three years old at the time of the hearing. She lives in

Clinton, Iowa.    In addition to the three children at issue in this proceeding,

Kimberly has two other children. There was no evidence about her educational

background. Kimberly has primarily been employed as an exotic dancer, but was

unemployed at the time of the hearing. She has been diagnosed with obsessive

compulsive disorder, body dysmorphic disorder, panic attacks, bipolar disorder,

and migraines. There is a founded child abuse report against Kimberly for failure

to provide supervision to the parties’ oldest child.2 Kimberly receives $1100 each

month in social security disability payments for the twins and she has paid some

amount of it to her parents.



2
   The parties’ oldest child received an injury to her eye. Kimberly kept the child out of
school and did not obtain medical services because she was worried the matter would
be reported to the Iowa Department of Human Services (IDHS). Eventually, the matter
was reported to IDHS and a founded report was issued against Kimberly for failure to
provide supervision. When a social worker contacted Kimberly to investigate the
incident, Kimberly stated a man in her company was Latravius. This was untrue and the
man was actually the father of another of her children who had an active arrest warrant
against him. Kimberly also lied to the social worker about whether she had a doctor’s
appointment set up for the oldest child’s injury.
                                             5



       The district court issued a paternity decree on December 30, 2013. The

court found, “Latravius impressed the Court as a calm, credible, and responsible

man of good character who was a positive role model for his children.” The court

determined Kimberly was not a credible witness, taking into consideration her

facial expressions and voice inflections, and noting she was directly impeached

on a number of issues. All three of the parties’ children were placed in their joint

legal custody.

       The court determined the parties’ oldest child should remain in the

physical care of Latravius.3 The court noted that when the child had been in

Kimberly’s care she was absent from or tardy to school an excessive number of

times. There were also occasions when Kimberly would deny visitation, even

after Latravius had traveled a distance in order to see the child.4 The court was

further troubled by the fact, “Kimberly allows several young people who are not

related to her [whom] are in trouble with the law to use her house as an address

and frequently to stay overnight.”        On the other hand, the evidence showed

Latravius has maintained a stable, happy, and wholesome household for the

parties’ oldest child after she was placed in his care by the temporary order of

August 30, 2012.



3
   Kimberly did not appeal the district court's decision placing the parties’ oldest child in
the physical care of Latravius. While there is no issue in this appeal concerning the
placement of the oldest child, we review the factors the court considered in placing her in
the care of Latravius because these factors are also relevant to the issue of which parent
should have physical care of the twins.
4
     There was one particularly troubling occasion when Kimberly agreed to allow
Latravius to take the oldest child to Georgia for a family reunion. After about four days,
Kimberly showed up in Georgia with several police officers and claimed Latravius had
attempted to kidnap the child, which was not true.
                                          6



       The court concluded the twin boys should be placed in the physical care of

Kimberly, “based entirely on the Court’s understanding that Kimberly allow [the

twins] to continue to reside with her parents as they have in the past.” The court

stated:

               The Court fully understands that a parent’s right to raise their
       child is generally to be preferred over grandparents. However,
       under the unique facts of this case, the boys seem to be doing
       relatively well where they are and Latravius has absolutely no
       experience in dealing with autistic children. The twins have
       essentially been in the primary care of Mr. and Mrs. Baldwin for
       most of their lives and to upset this arrangement would undoubtedly
       be traumatic.

The court set out a visitation schedule for the parties. Latravius was ordered to

pay $940 per month in child support and $279 per month for insurance.

Latravius appeals the decision of the district court.

       II.    Standard of Review

       Issues ancillary to a determination of paternity are tried in equity. Markey

v. Carney, 705 N.W.2d 13, 20 (Iowa 2005). We review equitable actions de

novo. Iowa R. App. P. 6.907. When we consider the credibility of witnesses in

equitable actions, we give weight to the findings of the district court, but are not

bound by them. Iowa R. App. P. 6.904(3)(g).

       III.   Physical Care

       Latravius claims the district court should have placed the twins in his

physical care. He asserts Kimberly does not have the capacity or interest to

provide adequate care for them.       He states that while the transition may be

difficult for the twins, physical care should be based on their long-term best

interests, and he is the parent who can give them the necessary care and
                                         7



attention they need. Latravius additionally claims the district court should not

have placed the children in the physical care of the mother with the

understanding they would actually be cared for by the maternal grandparents.

He points out the maternal grandparents are not parties to the district court’s

order and are not bound by the terms of the order. In the past, the maternal

grandparents were reluctant to grant him visitation, and he asserts that under the

court’s order he has no recourse if the grandparents continue to deny him

visitation. Latravius claims the district court’s order was tantamount to granting

the grandparents a guardianship over the children, without the necessity of

finding the parents were unfit to care for them.

       In determining physical care for children, our first and governing

consideration is the best interests of the children. Iowa R. App. P. 6.904(3)(o).

When physical care is an issue in a paternity action, we apply the criteria found in

Iowa Code section 598.41 (2013). Iowa Code § 600B.40. Our analysis is the

same whether the parents have been married, or remain unwed. Lambert v.

Everist, 418 N.W.2d 40, 42 (Iowa 1988); Yarolem v. Ledford, 529 N.W.2d 297,

298 (Iowa Ct. App. 1994).        Our objective is to place the children in an

environment likely to promote a healthy physical, mental, and social maturity. In

re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

       We first consider the issue of whether the court could properly grant

physical care of the twins to Kimberly, “based entirely on the Court’s

understanding that Kimberly allow [the twins] to continue to reside with her

parents as they have in the past.” “Ordinarily a dissolution court should award
                                           8



custody to a natural parent of the children at issue.” In re Marriage of Corbin,

320 N.W.2d 539, 545 (Iowa 1982).           There is a presumptive preference for

parental custody, and it is only when neither parent is a suitable custodian that

the court should consider an alternative. In re Mann, 293 N.W.2d 185, 190 (Iowa

1980). “Courts are not free to take children from parents simply by deciding

another home offers more advantages.” Id.

        A court has “authority to award custody of a minor child to a stranger to a

dissolution action when both parents are found to be unfit.” In re Marriage of

Mitchell, 531 N.W.2d 132, 133 (Iowa 1995).          “[T]he right of grandparents to

custody of a child under a divorce decree is no different from that of any third

person or stranger to the marriage.” Id. at 133-34. Grandparents may intervene

in a custody proceeding and receive physical care if they have met their burden

to prove the unsuitability of the parents. See In re Marriage of Hunnell, 398

N.W.2d 877, 878 (Iowa 1987); In re Marriage of Reschly, 334 N.W.2d 720, 721

(Iowa 1983).

        The availability of grandparents to assist a parent in caring for children is a

factor a court may consider in determining which parent should receive physical

care.   Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct. App. 2002) (noting

grandparents may be better childcare providers than strangers). See also In re

Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982) (affirming grant of

physical care of child to father, who had “assumed the responsibility of caring for

her with the assistance of his parents”); In re Petition of Purscell, 544 N.W.2d

466, 469 (Iowa Ct. App. 1995) (placing physical care of child with father who
                                          9



lived with his parents and who would receive assistance from them in caring for

the child). The order of the district court, however, did not involve placing the

children with a parent who would care for the children with the assistance of

grandparents, but instead involved a determination the children should reside

with the maternal grandparents.

       This case presents unfortunate circumstances. The evidence shows the

twins have been living with the maternal grandparents for several years, and

inevitably, are bonded with them. It is the maternal grandmother who has taken

the children to medical appointments and who has attended their school

conferences, with Kimberly also sometimes attending.            It was the maternal

grandmother who provided most of the testimony in this case concerning the

children’s autism. She testified that although both the children were nine years

old, they were just now almost potty trained and could partially dress themselves.

Their ability to communicate is limited. They need an established routine.

       While it is difficult to remove the twins from the care of the maternal

grandparents, they obviously are not parents to the children, are not parties to

this paternity action, and are not subject to the jurisdiction of the court. In effect,

the court placed the twins in the physical care of the maternal grandparents

without meeting the requirement of finding the parents were not fit to care for the

children. See Mitchell, 531 N.W.2d at 133. The district court did not find the

parents were unfit to care for the children, and in fact, determined that Latravius

should have physical care of the oldest child. No one has suggested the parents

are unfit to care for the children. Therefore, the children should not be placed in
                                        10



the care of a third-party, such as the maternal grandparents, but should be

placed in the physical care of one of the parents. See Mann, 293 N.W.2d at 190.

       On our de novo review, we determine the twins should not be placed in

the physical care of Kimberly for the same reasons the oldest child was not

placed in her physical care.     We give considerable deference to the district

court’s credibility determinations because the court has a firsthand opportunity to

hear the evidence and view the witnesses. In re Marriage of Brown, 487 N.W.2d

331, 332 (Iowa 1992). The evidence showed Kimberly often had problems with

truthfulness, was not diligent in sending her children to school, denied Latravius

visitation with the children, allowed young people with legal problems to stay in

her home, and did not always provide adequate supervision. Furthermore, the

evidence showed Kimberly had not accepted the responsibility for caring for the

twins for much of their lives.

       On the other hand, the district court found Latravius was “a calm, credible

and responsible man of good character who was a positive role model for his

children.” The evidence showed Latravius had done very well taking care of the

parties’ oldest child. Latravius testified he had done research on autism and how

to help children with this condition. He expressed a willingness to work with

experts in caring for the children. We determine the twin boys should be placed

in the physical care of Latravius. This change, however, should be effected over

a period of time to lessen the stress to the twins in changing their residence. We

note that in his brief filed in this appeal Latravius suggests that the proposed

parenting plan that he submitted to the district court, which included a graduated
                                         11



visitation schedule, could be used for purposes of such a transition.             We

determine the case should be remanded to the district court to create a schedule

for increasing the time Latravius spends with the twins. As Latravius spends

more time with the twins, an increased amount of this time should be spent at his

home in Illinois. Because of the unique needs of these children, we are hesitant

to dictate a rigid time frame in order to complete the transition, but urge that it

take place as expeditiously as the circumstances and needs of the twins will

allow. With that said, we determine that the twins should be fully transitioned to

living with Latravius not later than twelve months from the filing of this ruling, and

they will live with him thereafter.

       We also remand to the district court for a modification of the child support,

medical support, and visitation provisions of the paternity decree, consistent with

this ruling.

       IV.     Attorney Fees

       Latravius contends the district court should not have ordered him to pay

$2000 towards Kimberly’s attorney fees because she was not the prevailing party

below. Section 600B.25 provides, “The court may award the prevailing party the

reasonable costs of suit, including but not limited to reasonable attorney fees.”

Thus, in paternity actions, an award of attorney fees may only be made to the

prevailing party. Iowa Code § 600B.25.

       Before the district court, while Kimberly did not prevail on the issue of

whether the parties’ oldest child should be placed in her physical care, the court

placed physical care of the twins with her, albeit with the understanding the
                                         12



children would actually live with the maternal grandparents.           Because she

prevailed on this issue before the district court, we conclude the court did not

abuse its discretion in ordering Latravius to pay $2000 for her trial attorney fees.

       We affirm the parties’ paternity decree, as modified in this opinion. We

remand to the district court for an order gradually transitioning the twins into

physical care with Latravius to be completed not more than twelve months from

the filing of this ruling.   We also remand for a modification of child support,

medical support, and visitation in light of the modification of physical care for the

twins. Costs of this appeal are assessed to Kimberly.

       AFFIRMED AS MODIFIED AND REMANDED.
