                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1096
                            Filed January 23, 2020


ROBERT EDWARD MELLER,
    Plaintiff-Appellant,

vs.

MERANDA R. HENDRICKSON,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Angela L. Doyle,

Judge.



      Robert Meller appeals the order granting Meranda Hendrickson physical

care of the parties’ minor child. REVERSED AND REMANDED.



      Eric G. Borseth of Borseth Law Office, Altoona, for appellant.

      Brian L. Kern of Kern Law Office, Colfax, for appellee.



      Considered by Bower, C.J., and May and Greer, JJ.
                                         2


GREER, Judge.

      Robert (“Bobby”) Meller appeals the district court custody order, arguing the

court erred by granting Meranda Hendrickson physical care of their minor child.

We agree with the district court that the case presents “a close question,” but we

find the factors weigh in favor of Bobby having physical care.

      I. Background Facts and Proceedings.

      Bobby and Meranda are the parents of one minor child, L.M., born in 2013.1

These parents never married, but they, L.M., and Meranda’s two teenage children

from previous relationships, lived together in Colo, Iowa until the relationship

ended. After that, Bobby stayed in Colo and Meranda moved to Colfax, Iowa in

March 2015.

      For three years after the breakup, Bobby and Meranda had an informal

custody arrangement by which the parents had joint custody and shared physical

care. But as the child neared kindergarten age, the shared care plan became

unworkable as each wanted the child to attend school in their respective town.

      In March 2018, Bobby commenced this custody action asking the court to

award him physical care of the child. After a hearing on temporary matters, the

district court found Bobby to be the more stable parent and awarded him temporary

physical care of the child. The court gave Meranda liberal visitation. In the

temporary order, the court noted, “Meranda should be given every opportunity




1 L.M. is Bobby’s only child and one of Meranda’s four children. At trial, Meranda’s
other children were a fifteen-month-old child with her current fiancé and two
teenaged children, ages seventeen and fourteen, from earlier relationships.
                                          3


possible to demonstrate her worthiness to serve as primary custodian between

now and the final resolution of the case.”

       The court held a two-day custody trial in April 2019. At the time of trial, L.M.

was six years old and a kindergartner. By all accounts he was an active, happy

boy.   He struggled with speech and reading, and while he had made great

improvements, school staff recommended he repeat kindergarten.

       Bobby was thirty-seven years old at trial. He attained an associate’s degree

and worked full-time doing construction-equipment maintenance in Ames, earning

a gross annual income of $31,200. Bobby has lived in the same house in Colo

since the child was born. Although he lives in Colo and works in Ames, Bobby

enrolled the child in the Nevada school system. Bobby was not in a serious

relationship at the time of trial.

       Bobby is an only child, and his parents also live in Colo. His parents have

been actively involved with L.M., their only grandchild, since he was born. During

the relationship, both parties benefitted from help by Bobby’s mother, Edythe. She

provided full-time child care, paid and unpaid, when the child was younger. After

the parties’ separation and because the child attends school, Edythe cares for the

child before and after school while Bobby is at work. The child also spends the

night at his grandparents’ home once or twice per week.2 For a period of about

four weeks after Edythe had knee surgery, the child slept at his grandparents’




2Because his school has a late start time on Monday mornings, the child often
would stay at the grandparents’ home on Sunday night to sleep later in the
morning.
                                           4


house because Edythe could not drive. Edythe would get the child ready for

school, and his grandfather would transport him to and from school.

         Apart from providing childcare, and even when these parties were together,

Edythe provided support in the child’s life in other ways. For example, Edythe took

the child to doctor appointments.       Lately, she assumed an active role in his

education. Bobby listed Edythe, not Meranda, as an emergency contact for the

child.   Edythe, not Meranda, was included on many emails about the child’s

education and progress with the speech and reading specialists. Meranda finally

contacted the school directly in to be included in discussions about the child’s

education.

         Meranda was thirty-five at the time of trial, had a GED, and worked thirty to

thirty-five hours per week at a grocery store in Colfax, earning a gross annual

income of $15,600. She works from eight or nine in the morning until between two

and five at night. When she could not care for the child, she has a friend who

provides daycare. Meranda is engaged to Howard Williams, and the couple has a

young child together. Howard has two other children. These children stay with

Meranda and Howard every other weekend and once during the week.

         Besides Bobby and Howard, during Meranda’s adulthood she has had a

series of serious relationships that ended in breakups and upheaval for her and

her children. She broke up with the oldest child’s father because of his substance-

abuse issues, and she divorced the second child’s father after he beat Meranda to

the point of hospitalization. After that, she was married to another man for five

years, but they divorced because the relationship “just didn’t work out.” Engaged

to Howard since April 2017, the couple has not yet set a wedding date.
                                             5


       Meranda and Howard live together in the renovated house in Colfax with

their young child, Meranda’s two older children, as well as L.M. and Howard’s two

children when they are visiting. Altogether there are often six children in their

house. The house was originally a two-bedroom, 676 square foot home, but a

home remodel added four more bedrooms and about 1200 square feet of living

space. While the home was being remodeled, the family lived in a camper on the

property for a significant period of time.

       At trial, Bobby and Meranda each had their complaints about the other’s

parenting.    Bobby criticized Meranda’s history of cycling through serious

relationships, her living situation, and her lack of supervision and involvement with

her children. He emphasized his arguments by pointing to an incident where the

child fell into a pool while unsupervised and another incident where the child was

bit by a dog at the maternal grandmother’s home. Meranda criticized Bobby’s

parents’ level of involvement in the child’s life and Bobby’s consequent lack of

involvement. Meranda claimed that Bobby gave the child ill-fitting clothing and did

not require him to wear a seatbelt. Shortly before trial, she reported bruising she

found on the child to the police, which she claimed the child told her was from

Bobby squeezing him.3         She also discussed an incident where Bobby’s dog

scratched the child’s face.

       After a two-day trial in April 2019, the court found both parents were

competent caretakers and described the case as a close call. In the end, the court



3The report went unfounded, and Bobby contends the child was clumsy, regularly
had bruising, and the call to police amounted to pre-divorce trial strategy by
Meranda.
                                            6


determined more factors weighed in favor of Meranda having physical care of the

child. Bobby appeals.

         II. Standard of Review.

         Because custody matters are tried in equity, our review of these

proceedings is de novo. Iowa R. App. P. 6.907. “Although we give weight to the

factual findings of the district court, we are not bound by them.” In re Marriage of

Mauer, 874 N.W.2d 103, 106 (Iowa 2016); see also Iowa R. App. P. 6.904(3)(g).

“Physical care issues are not to be resolved based upon perceived fairness to the

spouses, but primarily upon what is best for the child.” In re Marriage of Hansen,

733 N.W.2d 683, 695 (Iowa 2007). “The objective of a physical care determination

is to place the children in the environment most likely to bring them to health, both

physically and mentally, and to social maturity.” Id.

         III. Analysis.

         Bobby challenges the district court’s award of physical care to Meranda.

“[T]he main distinction between joint physical care and primary physical care with

liberal visitation rights is the joint decisionmaking on routine matters required when

parents share physical care.” In re Marriage of Hynick, 727 N.W.2d 575, 580 (Iowa

2007). In determining a physical-care award, courts will consider the factors listed

in Iowa Code section 598.41(3) (2018).4 The controlling consideration is the best


4   Iowa Code section 589.41(3) provides in relevant part,
         In considering what custody arrangement . . . is in the best interest
         of the minor child, the court shall consider the following factors:
                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.
                                          7

interests of the child. Hansen, 733 N.W.2d at 695–96. When determining who will

have physical care of the child, we will consider “stability and continuity with an

eye toward providing the [child] with the best environment possible for [the child’s]

continued development and growth.” Id. at 700. “[T]he factors of continuity,

stability, and approximation are entitled to considerable weight.” Id.

       From the written record, we note factual conflicts on each side, but the

district court heard the witnesses and offered observations supporting the decision.

In a detailed ruling setting out specific positives and negatives for both parents, the

court listed Meranda’s strengths as (1) flexible employment and close proximity to

the school, (2) maintaining the half-sibling connections, and (3) her open

communication with Bobby. The court awarded Meranda physical care of the child.

The district court based its decision on the paternal grandmother’s extensive

involvement in the child’s life, Bobby’s exclusion of Meranda from being involved

in the child’s education, Meranda’s work schedule, and the child’s ability to spend

more time with his half-siblings if mainly in Meranda’s care.




               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 in to
       consideration the child’s age and maturity.
               g. Whether one or both parents agree or are opposed to joint
       custody.
               h. The geographic proximity of the parents.
               ....
                                         8


       In particular, the trial court morphed Bobby’s parental role into a co-

parenting relationship with Edythe. The district court referenced the extensive time

the child spent at the grandparents’ home, including overnights, and criticized the

grandmother’s testimony about school decisions as “we enrolled him” and “we

knew he desperately needed to have preschool.” (Emphasis added.) The court

found persuasive that Bobby listed his mother as the emergency contact at school

rather than Meranda. And the trial court found fault with Bobby for failing to keep

Meranda updated on school and other events as required by the temporary order.

At the same time, the court opined both parents operated under a previous shared

co-parenting agreement where neither questioned the ability of the other to care

for the child appropriately.

       It is apparent the court was troubled by Edythe’s role. Given the long-term

care role of the grandparents, however, it is not for us to rebuke that relationship

as inappropriate when both parents have benefitted from that expanded role. See

In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982) (rejecting criticism of

the grandparents’ expanded role and finding grandparents are preferred

caretakers over strangers). It is appropriate to consider grandparent availability to

assist a parent in caring for children as a factor in determining which parent should

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

(“We agree that grandparents may be better childcare providers than strangers

and their availability to their child in assisting with childcare may be a factor in

assessing a custodial claim.”); see also Welbes, 327 N.W.2d at 758 (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 Purscell, 544 N.W.2d 466,
                                           9


469 (Iowa Ct. App. 1995) (placing physical care of the child with father who lived

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

child). For the child’s entire life, Edythe supported the child’s wellbeing without

criticism by either parent. That stability is important.

       Because stability and continuity of caregiving are important considerations

in a custody decision, a history of successful caretaking by the parent “is a strong

predictor that future care of the [child] will be of the same quality.” Hansen, 733

N.W.2d at 697. Here we have two main concerns. First, Meranda has a history of

unstable relationships, and her older children have been forced to move many

times. Since L.M.’s birth, Meranda has lived with Bobby, her mother, and now her

current fiancé. With Bobby, the child knows only one home since his birth. The

district court looked past this history and discounted Bobby’s stable and long-

standing family support system.

       The second concern relates to the educational stability for the child. On this

issue the trial court’s main contention against awarding Bobby physical care

related to his communication with Meranda about schooling status. Yet Bobby

pushed for early educational intervention for the child, who by all accounts had

significant delays with phonemic awareness skills, appropriate classroom

behaviors, and speech issues. Because of the shared schedule, the child only

attended preschool intervention on Bobby’s custodial days—two days one week

and three days the next week. On Meranda’s custodial days, she continued in her

daycare arrangement with a friend. The temporary order allowed Bobby to enroll

the child in the Nevada school system for kindergarten.
                                         10


       Although Bobby did not always direct email updates to Meranda from the

child’s school, Meranda admitted receiving emails about the child and she

attended school conferences. When she attended the initial back-to-school event,

as a parent she could opt for involvement from that point forward. Email exhibits

to Meranda show no surprise related to the additional testing and services at the

school. Yet she claimed during trial she was left out of school decisions until

February 2019. Contrary to the assertions about Bobby, from the time the school

recommended that this child repeat kindergarten, and as of the time of trial,

Meranda had not yet communicated with Bobby about this issue. Her lack of

initiative related to the early childhood education is concerning. In contrast, Bobby,

with the support of his mother, has been an advocate for the child. By all accounts,

the child has been getting the services he needs and his speech and reading skills

have improved while attending school in Nevada. Meranda’s lack of involvement

in the child’s educational needs weighs against finding the child’s best interests

would be served in her physical care. In re Marriage of Winter, 223 N.W.2d 165,

166 (Iowa 1974) (noting that the capacity of a parent to meet the child’s educational

needs is a factor to consider in best-interests determinations).

       Finally, we acknowledge there is a strong interest in keeping siblings and

half-siblings together, yet separation may better promote the long-term interests of

the child. In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). The record

lacks evidence that this six-year-old child has bonded to the fifteen-month-old half-

sibling. Likewise, the older half-siblings are separated by eight and eleven years.

See Moses v. White, No. 17-0823, 2017 WL 5185450, at *3 (Iowa Ct. App. Nov. 8,

2017) (finding step-sibling separated by six and nine years weighed against close
                                         11


bond necessary to compel custody determination). Testimony also confirmed the

teenaged half-siblings worked weekends when Meranda had visitation.            No

testimony established that separating the child from his half-siblings would harm

his well-being.

       While we believe both parents love their child and are suitable caregivers,

we find Bobby is the superior parent to minister to the child’s needs.       After

considering the relevant factors, we find Bobby established a strong interpersonal

relationship with the child, the capacity to provide for educational needs of the

child, and the continuation of a long-term stable and supportive environment until

this action began. We grant Bobby physical care of the child, award visitation to

Meranda as originally set out for Bobby, and remand for further orders related to

child support.

       IV. Disposition.

       For these reasons, we reverse the decision of the district court and remand

for the entry of an order consistent with this opinion.

       REVERSED AND REMANDED.
