                   IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1452
                                Filed June 7, 2017


JUSTIN DEMOND HYDE,
     Petitioner-Appellant,

vs.

ONTARIA MONIQUA MANN,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      A father appeals the district court’s grant of physical care of his minor child

to the child’s mother. AFFIRMED.



      Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

      Jason S. Rieper of Rieper Law, P.C., Des Moines, for appellee.



      Heard by Vogel, P.J. and Doyle and McDonald, JJ.
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MCDONALD, Judge.

          Justin Hyde, Sr., (Justin) and Ontaria Mann (Ontaria) are the never-

married parents of J.D.H.J. In the fall of 2015, Justin filed a petition to establish

paternity, custody, visitation, and support. Justin sought physical care of J.D.H.J.

The district court granted the parties joint legal custody of J.D.H.J. and awarded

Ontaria physical care of the child. Justin timely filed this appeal.

                                          I.

          Justin and Ontaria met in 2008 and moved in together in 2009.         The

relationship was not healthy. The couple separated shortly after Ontaria became

pregnant.     After the parties separated, Justin moved back to his hometown,

Dallas, Texas. Justin returned to Iowa for Ontaria’s scheduled delivery. Ontaria

gave birth to J.D.H.J. in March 2010. Justin remained with Ontaria and J.D.H.J.

for several days after birth and then returned to Texas. Over the next year,

Justin returned to Iowa several times to visit with J.D.H.J. Justin testified he and

Ontaria exercised shared physical care of the child in three-month intervals

starting around the time of the child’s first birthday. The record does not support

this claim. Instead, it appears Justin exercised extraordinary visitation with the

child prior to the time the child started school. After J.D.H.J. began school,

J.D.H.J. spent the school year with Ontaria and summer and holiday breaks with

Justin.

          At the time of trial, Ontaria was employed in the Hy-Vee pharmacy

department.      She commenced that employment shortly after Justin filed this

action. Before obtaining employment at Hy-Vee, Ontaria worked as an exotic

dancer and attempted to start a catering business. Prior to her employment with
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Hy-Vee, her earnings history is unknown.             She did not provide any

documentation or testimony regarding her income.        Nor did she file any tax

returns. She testified she did not file tax returns because of her embarrassment

about her past profession.      It appears from the record she received public

assistance in the form of housing and food stamps. At the time of trial, Ontaria

had a suspended license.       She testified she continued to drive, however—

sometimes with J.D.H.J. in the car.

       At the time of trial, Ontaria resided in a single-family home on the south

side of Des Moines. It appears Ontaria was living in public housing until after the

time Justin filed this action. At her new residence, J.D.H.J. has his own room

and a yard to play in. Ontaria’s sister lives nearby and helps care for J.D.H.J.

when Ontaria is at work. J.D.H.J. often plays with Ontaria’s sister’s children.

Ontaria’s sister-in-law also lives in the area and helps Ontaria by providing her

with a car and assisting with care for J.D.H.J. Ontaria’s mother has an active

role in J.D.H.J.’s daily life. She usually picks him up from school and watches

him until Ontaria returns home from work. J.D.H.J. regularly attends church with

his family. Ontaria also has an older daughter, who spends the majority of her

time in Burlington with her father.

       Justin recently went to school to get his x-ray technician’s license and, at

the time of trial, worked as a limited x-ray technician. Previously, Justin worked

odd jobs and welded for his grandfather. In 2013, Justin was ordered to pay

child support. As of trial, he had paid $894 in support out of the $4472 due.

       Justin has criminal history.   In 2004, Justin pleaded guilty to assault

causing injury after getting into a fight. Justin was placed on probation, which he
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violated. In 2011 or 2012, Justin was arrested and charged with several drug

trafficking offenses, including distribution of cocaine and marijuana. In 2015, to

resolve the charges, Justin pleaded guilty to attempted possession of a

controlled substance. He admitted he bought and sold prescription medications,

including cancer medications he stole from his maternal aunt. He was placed on

probation, which he violated on several occasions when he tested positive for

marijuana. As a result, Justin was jailed for six days. At the time he was jailed,

J.D.H.J. was in his physical care. While in jail on his probation violation, Justin

got into an altercation with a detention officer and threatened to kill him. Also,

while still detained on his probation violation, Justin became upset and broke a

sprinkler head off of the fire suppression system and flooded the jail. He was

charged with and pleaded guilty to criminal offenses arising out of these two

incidents.

         Justin lives with his fiancée in a single family home in the Dallas area.

Justin has another son from a prior relationship who is in his physical care.

J.D.H.J. tries to emulate his half-brother, who is three years older.      Justin’s

parents and grandparents also take an active role in J.D.H.J.’s life and provide

care for J.D.H.J. At times, Justin’s parents even transported J.D.H.J. between

Iowa and Texas. While in Texas, J.D.H.J. participates in the Boys and Girls Club

and attends church and bible study.

         The parents agree J.D.H.J. is generally a well-mannered and thriving

child.   He has some minor health problems, including allergies and asthma.

J.D.H.J. uses an inhaler, as needed, and a breathing machine daily. At the time
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of trial, J.D.H.J. was ready to start first grade in Des Moines. J.D.H.J. previously

attended preschool and kindergarten in the Des Moines Public School District.

       In the fall of 2015, Ontaria had a disagreement with her then-paramour.

The paramour accused Ontaria of domestic assault. Ontaria claims J.D.H.J. told

her that her paramour inappropriately touched him during bath time. Ontaria

admits she “ran with it” and accused her paramour of sexually abusing J.D.H.J.

While she never testified that she fabricated the story or coached J.D.H.J., she

does admit that she was mistaken and no abuse took place. As a result of the

accusation, the Iowa Department of Human Services (IDHS) investigated the

sexual abuse claims. A summary of IDHS’s investigation notes there was no

criminal investigation into the sexual abuse allegation because Ontaria admitted

to police that she made the allegation up.         During the IDHS investigation,

J.D.H.J. was tardy or absent seventeen times in one month of school. Eventually

the IDHS investigation determined the accusation of sexual abuse was

unfounded but concluded that Ontaria endangered J.D.H.J. by denying critical

care, stemming from her abusive relationship with her paramour. IDHS directed

Ontaria to take certain steps to improve her care for J.D.H.J. Ontaria complied

by seeking therapy and breaking up with her paramour.

       Upon learning of the investigation, Justin traveled to Iowa to take custody

of J.D.H.J. and initiated this action.       Justin filed a petition for emergency

temporary physical care of J.D.H.J. The district court granted Justin temporary

physical care, determining that Justin was “barely” in a better position than

Ontaria to care for J.D.H.J. In the temporary order, Ontaria was granted at least

four overnight visits per month and liberal access to J.D.H.J. by telephone. After
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Ontaria had difficulty contacting J.D.H.J. by phone, she filed a motion to return

physical care to her. Justin and his counsel failed to appear at the hearing, and

the district court returned physical care to Ontaria.

       At trial, both parties sought physical care of the child. The district court

determined Ontaria is better situated to retain physical care, with Justin

exercising visitation during the summer, winter break, and spring break. Justin

then filed a motion to enlarge and a motion for reconsideration; the court denied

both. Justin timely filed this appeal.

                                          II.

       Child custody proceedings are reviewed de novo. Lambert v. Everist, 418

N.W.2d 40, 42 (Iowa 1988). “We give weight to the findings of the district court,

especially to the extent credibility determinations are involved.” In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007) (citing In re Marriage of Sullins, 715

N.W.2d 242, 247 (Iowa 2006)). “Prior cases have little precedential value; we

must base our decision primarily on the particular circumstances of the parties in

this case.” In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983) (citing

In re Marriage of Kehrli, 241 N.W.2d 923, 926 (Iowa 1976)). Our determination

of physical care does not change because the parties were never married. See

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

                                         III.

       Our determination of physical care must turn on what is in the best

interests of J.D.H.J. See In re Marriage of Junkins, 240 N.W.2d 667, 668 (Iowa

1976). “In determining the visitation or custody arrangements of a child born out

of wedlock, if a judgment of paternity is entered and the mother of the child has
                                          7


not been awarded sole custody, section 598.41 shall apply to the determination,

as applicable, and the court shall consider the factors specified in section 598.41,

subsection 3, including but not limited to the factor related to a parent's history of

domestic abuse.” Iowa Code § 600B.40. Iowa Code section 598.41(3) (2015)

provides a nonexclusive list of factors to consider when determining what care

arrangement is in a child’s best interests. See Hansen, 733 N.W.2d at 696.

Factors most relevant to this proceeding include: J.D.H.J.’s age, maturity, mental

and physical health; his emotional and educational needs; Ontaria and Justin’s

character, stability, and mental health; and their ability to meet J.D.H.J.’s

emotional and educational needs. See In re Marriage of Winter, 223 N.W.2d

165, 166–67 (Iowa 1974). We must also give considerable weight to continuity,

stability, and approximation of care, while being mindful of “situations where the

emotional bonds between children and a parent who has not been the primary

caregiver are stronger than the bonds with the other parent.”          Hansen, 733

N.W.2d at 700. Only a parent that supports the child’s relationship with the other

parent may be selected as primary caregiver to the child. Id.

       When we examine the ledger, we find both parents have their debits.

Justin has criminal history, including a history of violence and distribution of

controlled substances. Justin has a history of substance abuse, as reflected in

his positive drug tests during his most recent probation. Justin has not always

provided appropriate care for and support of J.D.H.J. Justin left Iowa shortly

after Ontaria became pregnant.       Justin failed to provide meaningful financial

support for the child. He is currently delinquent on his child support obligation.

Justin has limited knowledge of J.D.H.J.’s educational history. Justin has limited
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knowledge of J.D.H.J.’s medical needs.          He disputes J.D.H.J.’s asthmatic

condition, claiming J.D.H.J.’s symptoms are a result of second-hand smoke and

exposure to black mold, even though J.D.H.J.’s medical records indicate a

medical doctor diagnosed him with chronic asthma.

       Ontaria has exercised poor judgment and demonstrated a propensity for

dishonesty.   Most glaringly, she involved J.D.H.J. in a frivolous complaint of

sexual abuse as a means to seek revenge on her then-paramour.                At trial,

Ontaria conceded “I had spoken to my son and he alleged something and at the

time I took it and ran with it and it wasn’t completely true and that’s what

happened.” She exercised extremely poor judgment in making a false claim.

She does not have a valid driver’s license but continues to drive, exposing

herself to criminal sanction. She failed to report her income for years while at the

same time receiving public assistance.        She exposed her son to domestic

violence in the home, resulting in a founded complaint of denial of critical care.

       The ledger also shows the parents have credits. Justin testified he no

longer uses controlled substances.           He completed court-ordered anger-

management training. Justin sought out vocational training, is now a licensed x-

ray technician, and has steady employment. His relationship with his fiancée

appears to have had a positive impact on Justin, and his fiancée reported no

abuse in their relationship. When J.D.H.J. is in Dallas, Justin involves him in the

local Boys and Girls Club and takes him to church and to bible study. Justin’s

extended family, including his parents and grandparents, appear kind, thoughtful,

and loving. In addition, J.D.H.J. is able to spend time and bond with his half-

brother while in Justin’s care.
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       Ontaria, in light of the IDHS’s findings, sought out therapy to address her

emotional issues and ended her relationship with her abusive paramour. Since

the conclusion of the IDHS investigation, J.D.H.J. has had no school attendance

issues. Ontaria recently commenced employment at a pharmacy and is training

to become a pharmacy technician. Her new position provides steady hours and

benefits, including a 401(k) program and health insurance. Her family continues

to play an active and positive role in J.D.H.J.’s upbringing. Ontaria’s mother and

sister provide care and transportation to J.D.H.J. while Ontaria works. J.D.H.J.

also has a strong bond with his maternal cousins and the family regularly attends

church together creating a connection between J.D.H.J. and the local community.

       “Determining what custodial arrangement will best serve the long-range

interest of a child frequently becomes a matter of choosing the least detrimental

available alternative for safeguarding the child’s growth and development.”

Winter, 223 N.W.2d at 167.       Both Justin and Ontaria have faced challenges

impeding their ability to effectively parent, but both appear to be improving their

lives to become better parents. Considering the factors enumerated in Iowa

Code section 589.41(3) and In re Marriage of Hansen, it is in J.D.H.J.’s best

interests for Ontaria to retain physical care of J.D.H.J.

       Maintaining continuity of care for J.D.H.J. is of particular importance in the

present case. See Hansen, 733 N.W.2d at 696–97. Justin’s family and fiancée

testified to the emotional strain placed on J.D.H.J. each time he is transferred

from one parent’s care to the other’s care. They indicated J.D.H.J. becomes

emotionally upset and acts out after each exchange. They said J.D.H.J. even

talked about self-harm and harming others after one exchange. This emotional
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stressor should be minimized to prevent any unnecessary emotional distress for

J.D.H.J. See id. at 697 (indicating a change in care arrangement can emotionally

harm a child and is not in the child’s best interests). Ontaria has been J.D.H.J.’s

primary caregiver for most of his life.      She has shouldered the burden of

parenting duties for J.D.H.J., including: securing medical coverage and care for

J.D.H.J.; enrolling J.D.H.J. in school and establishing relationships with

educators; arranging for after-school childcare; and providing food, shelter, and

clothing for J.D.H.J. See id. (giving considerable weight to parties’ past level of

involvement and assumption of caregiving duties).

      In addition, Ontaria’s support of J.D.H.J.’s relationship with Justin has

remained steadfast. She testified credibly regarding the importance she placed

on maintaining the bond between J.D.H.J. and his father. This augurs in her

favor. See id. at 700. In contrast, when Justin was awarded temporary physical

care of J.D.H.J., he impeded contact between J.D.H.J. and Ontaria.

      While J.D.H.J.’s relationship with his half-brother should be considered

when determining J.D.H.J.’s best interests, the relationship is not dispositive.

See In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). Generally siblings

should not be separated, including half-siblings. Id. However, simply because

one parent has physical care of a half-sibling does not mean the parent must

have physical care of the child at issue. See In re Marriage of Brauer, 511

N.W.2d 645, 647 (Iowa Ct. App. 1993). While it is important to keep siblings

together, ultimately the child’s long-term best interests are the paramount

consideration. Id. Removing J.D.H.J. from Ontaria’s physical care and placing

him into Justin’s, for the sake of putting together half-siblings who have not
                                         11


previously lived together on a continuous basis, is not in J.D.H.J.’s long-term best

interests. See id. (determining it was not in a child’s best interests to remove her

from her primary caregiver so she may live with a half-sibling).

       Our determination that Ontaria should retain physical care does not mean

Justin is a poor caregiver, it only means it is in J.D.H.J.’s best interests to remain

in Ontaria’s care.     Both parents should continue on their paths of self-

improvement, for J.D.H.J.’s sake as well as their own, and work on effectively

communicating with each other.

                                         IV.

       Ontaria requests appellate attorney fees.       Iowa Code section 600B.26

permits the award of reasonable attorney fees in proceedings to determine

custody. “An award of appellate attorney fees is within the discretion of the

appellate court.” Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005) (citing In re

Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996)).             When determining if

appellate attorney fees should be awarded the court considers “the needs of the

party making the request, the ability of the other party to pay, and whether the

party making the request is obligated to defend the trial court’s decision on

appeal.” Id. (quoting Ask, 551 N.W.2d at 646). Because this action was initiated,

in large part, by Justin’s rightful concern for the welfare of J.D.H.J. after Ontaria

falsely reported J.D.H.J. was being sexually abused by her paramour, we decline

Ontaria’s request for legal fees.

                                         V.

       For the foregoing reasons, we affirm the judgment of the district court.

       AFFIRMED.
