               IN THE SUPREME COURT OF IOWA
                            No. 66 / 07–0006

                            Filed May 16, 2008


IN RE THE MARRIAGE OF BRANDON J. POWERS
AND HEATHER R. POWERS

Upon the Petition of
BRANDON J. POWERS,

      Appellant,

vs.

And Concerning
HEATHER R. POWERS,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

George L. Stigler, Judge.



      Appellee seeks further review of court of appeals decision reversing

district court judgment placing physical care of minor children with

appellee.   DECISION OF THE COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT AFFIRMED.



      John J. Wood of Beecher, Field, Walker, Morris, Hoffman &

Johnson, P.C., Waterloo, for appellant.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellee.
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PER CURIAM.

      In this further review of a decision by the court of appeals in a

dissolution-of-marriage action, we must decide which parent should be

the primary caregiver of two minor children. We vacate the decision of

the court of appeals and affirm the decision of the district court.

      I. Background Facts and Proceedings.

      Brandon and Heather Powers were married on August 1, 1992.

Heather was seventeen years old at the time and had not yet completed

high school. Brandon was twenty years of age. He was a high school

graduate and was employed on a full-time basis.            The relationship

between Brandon and Heather was tumultuous at times, resulting in

multiple separations. Brandon was convicted of domestic abuse against

Heather in 1998. Brandon and Heather separated for the last time in

April 2005, when Heather moved from the marital home. A petition to

dissolve the marriage was filed in January 2006, and a trial was held

before the district court in October 2006.

      Brandon and Heather had two children during their marriage.

Hayley was born in 1993, and Noah was born in 1999. Heather was the

primary caregiver of the two children during the marriage, prior to the

separation in April 2005.       Following the separation, Brandon and

Heather equally shared in the care of the children.

      Brandon worked on a full-time basis throughout the marriage,

while Heather generally worked on a part-time basis.           Heather was

employed by her mother for many years and was able to take the

children to work with her. Brandon acknowledged Heather was a good

mother to the children.

      Much of the evidence at trial focused on the conduct and activities

of the parties and the children during the separation. This evidence was
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largely detrimental to the respective claims for primary care by the

parties and showed the children have suffered as a result of their

parents’ conduct. Heather generally engaged in financially irresponsible

behavior, was terminated from her employment, and renewed a

relationship with a convicted drug dealer who was facing new drug-

related charges. To her credit, Heather insulated the children from the

relationship. Heather was also arrested for domestic abuse during the

separation after she scratched Brandon during a failed attempt to take a

vehicle from the garage of the marital home.

      Brandon began a relationship with another woman during the

separation and was not always supportive of Heather in her relationship

with the children. Brandon’s girlfriend eventually began to reside in the

marital home, along with her three children. The relationship between

Brandon and Hayley became strained, and Brandon would use vulgar

language towards Hayley at times.       To his credit, however, Brandon

completed a parenting course during the separation and expressed an

understanding of the need to support Heather in her relationship with

the children and to be more understanding of the needs of the children.

      At trial, Hayley expressed a strong desire to reside with Heather,

and Hayley believed Noah also wanted to live with his mother.        The

district court found Hayley to be sincere in her testimony.

      The district court awarded joint legal custody with primary

physical care to Heather.    Brandon was given liberal visitation of the

children.

      Brandon appealed.      We transferred the case to the court of

appeals. The court of appeals modified the decree to place physical care

of the children with Brandon.      We granted Heather’s application for

further review.
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       II. Standard of Review.

       Our standard of review is de novo. In re Marriage of Hansen, 733

N.W.2d 683, 690 (Iowa 2007). We give the district court deference as to

matters of fact—especially when determinations of credibility are

involved—as that court had the benefit of viewing the demeanor of the

witnesses firsthand. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa

1992).

       III. Physical Care.

       The fundamental goal in determining primary physical care of

children in an action for dissolution of marriage is to place the children

in the care of that parent who will likely best minister to the long-range

best interests of the children.1 In re Marriage of Winter, 223 N.W.2d 165,

167 (Iowa 1974).         “[T]he basic framework for determining the best

interest of the child” is well established. In re Marriage of Hansen, 733

N.W.2d at 696.2        Generally, stability and continuity of caregiving are

important considerations.3          Id. (citing In re Marriage of Bevers, 326

N.W.2d 896, 898 (Iowa 1982)). “Stability and continuity factors tend to


       1The  district court ordered joint legal custody of the two children. That
determination has not been appealed. Likewise, neither party appeals the distribution
of marital assets and debts. Additionally, neither party requests joint physical care.
Nor does the arrangement recommend itself, considering each party has committed
domestic abuse assault against the other. Accordingly, we only decide which party will
have primary physical care of the two children.
       2Iowa Code section 598.41(3) (2005) establishes a list of nonexclusive factors for
determining the best interest of the child in the child custody context. “Although Iowa
Code section 598.41(3) does not directly apply to physical care decisions, we have held
that the factors listed here as well as other facts and circumstances are relevant in
determining whether joint physical care is in the best interest of the child.” In re
Marriage of Hansen, 733 N.W.2d at 696 (citing In re Marriage of Winter, 223 N.W.2d at
166–67). Both parties acknowledged those factors apply to the question presented here.
       3“[P]reservation of the greatest amount of stability possible is a desirable goal”

because “imposing a new physical care arrangement on the children that significantly
contrasts from their past experience can be unsettling, cause serious emotional harm,
and thus not be in the child’s best interest.” Hansen, 733 N.W.2d at 696–97.
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favor a spouse who, prior to divorce, was primarily responsible for

physical care.” Id. (citing Iowa Code § 598.41(3)(d)). Additionally, “ ‘past

caretaking patterns likely are a fairly reliable proxy of the intangible

qualities such as parental abilities and emotional bonds that are so

difficult for courts to ascertain.’ ” Id. (quoting Katharine T. Bartlett, Child

Custody in the 21st Century: How the American Law Institute Proposes to

Achieve Predictability and Still Protect the Individual Child’s Best Interests,

35 Willamette L. Rev. 467, 470 (1999)).              “As a result, the successful

caregiving by one spouse in the past is a strong predictor that future care

of the children will be of the same quality.” Id. at 697.

         In this case, the evidence reveals Heather was the primary

caregiver of the two children during the marriage.4 The evidence, while

not detailed, also reveals Heather was a good mother to the children, and

the children did well under her care during the marriage.

         In addition, the law gives weight to a preference expressed by a

child for one parent to be the primary caregiver over the other parent,

depending on the age, maturity, and strength of the preference of the

child.     Iowa Code § 598.41.        Hayley expressed a strong, unequivocal

desire to live with her mother and believed Noah felt the same. Hayley
was thirteen years old at the time she expressed her preference, and the

results of her standardized tests in school showed she functioned above

the national average. Moreover, the district court felt her testimony was

sincere.    We give weight to this assessment of her credibility by the

district court on appeal. In re Marriage of Vrban, 359 N.W.2d 420, 423

(Iowa 1984).

       4“Stability and continuity concepts have been refined in the recent literature and

expressed in terms of an approximation rule; namely, that the caregiving of parents in
the post-divorce world should be in rough proportion to that which predated the
dissolution.” Id.
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      Notwithstanding, we recognize, as did the court of appeals, that

Heather frequently engaged in conduct, some very disturbing, that

weighs against a finding that she can best minister to the interests of the

children. Of course, Brandon has done the same. Yet, the conduct by

both parties occurred during the period of separation and should not

necessarily   trump    the    overall    parenting        characteristics    exhibited

throughout the entire marriage. In deciding primary care, it is better to

look to the totality of the circumstances of the parents and attempt to

place specific events during the period of separation, or other such times,

into perspective. In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct. App.

1984).    Moreover, the deficiencies exhibited by Heather during the

separation largely arose from incidences that were circumstantial in

nature, while the parenting deficiencies exhibited by Brandon largely

revealed a personality trait. The language Brandon directed at Hayley

during    arguments    cannot       be   excused     or    minimized       under   any

circumstance.

      Nevertheless, the decision that must be made in this case is

painfully close.    It is clearly capable of two different conclusions, as

shown by the contrasting decisions of the district court and the court of

appeals. In the end, we give weight to the decision of the court that is in

a superior position to make the decision. Iowa R. Civ. P. 6.14(6)(g). The

district court has the distinct advantage over an appellate court to decide

custody issues based on its ability to see and hear the parties and draw

upon senses and perceptions that are unavailable on appeal. Vrban, 359

N.W.2d at 423.       While the district court made no specific credibility

findings regarding Brandon and Heather in its written decree, these

findings are inherent in the decision made. See Second Injury Fund v.

Braden,    459     N.W.2d    467,    471     (Iowa   1990)      (finding    credibility
                                       7

determination to inhere in district court ruling when order contained no

specific discussion of credibility).

      IV. Conclusion.

      We conclude Heather should be awarded physical care of the

children with liberal visitation to Brandon as described in the decree

entered by the district court.     We vacate the decision of the court of

appeals and affirm the decision of the district court.

      DECISION OF THE COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Wiggins, Hecht, and Appel, JJ., who

dissent.
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                                   #66/07–0006, In re Marriage of Powers

WIGGINS, Justice (dissenting).

      I dissent.   The majority is correct when it states the goal in

determining primary physical care of the children is to place the children

in the care of the parent who will likely best minister to the long-range

best interests of the children. In re Marriage of Winter, 223 N.W.2d 165,

167 (Iowa 1974). Although past caretaking patterns may be an indicator

of future conduct, the evidence presented at trial can and should be used

to overcome past caretaking in custody decisions if the evidence

establishes that the parent has created a situation where the parent will

be unable to best minister to the long-range best interests of the

children.   In other words, our primary concern is with the children’s

future care and well-being. The evidence in this case establishes Heather

has created a situation making it unlikely she will be able to best

minister to the long-range best interests of the children.

      The evidence I find most convincing to deny Heather primary

physical care of the children is her renewed relationship with a drug

dealer previously convicted of selling drugs to minors.       Just months

before the dissolution trial, this individual was arrested for possession of

cocaine in front of her residence.        Although she denies she has

introduced the children to this drug dealer and professes to have broken

off her relationship with him, she continues to drive his car and use his

cell phone.   She remains financially, if not emotionally, dependent on

this individual.

      To further complicate the situation, since the separation Heather

has been unable to provide a stable home life for the children.         Her

problems began when Heather falsified her time card to receive wages

she was not entitled to receive. When her employer discovered Heather’s
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conduct, her employer terminated her from employment. Because of her

inability to manage money, she financed the 2000 Volkswagen, a vehicle

she received in the dissolution free and clear of any liens or

encumbrances. She then proceeded to default on the loan payments and

the vehicle was repossessed.     In an attempt to manage her financial

difficulties, she cashed out her 401(k) account and kept the parties’

entire $4600 tax refund for herself.    All this money is gone.   Because

Heather has not been able to manage her finances, she has had to

change the residence of the children numerous times.

      Heather’s choice of friends and financial situation are not matters

that will resolve quickly. The children are 9 and 15 years old. They need

a care provider who can provide them with some stability. It is apparent

Heather’s poor choices are affecting the children adversely. The school

has sent notes home regarding the children’s lack of attendance. One

child is receiving a failing grade in chorus based on this lack of

attendance. This child is also failing in math. The fact that Heather has

been unable able to remedy these problems does not bode well for the

future.

      Finally, I cannot agree with the majority that under this record

credibility findings in favor of Heather are inherent in the district court

decision. The district court order is devoid of any determination as to the

credibility of any of the parties. Based on my review of the record, I am

convinced that Heather was less than honest regarding her reason for

termination from her employment and her relationship with a convicted

drug dealer.

      The majority cites our recent decision in In re Marriage of Hansen,

733 N.W.2d 683 (Iowa 2007), in support of its affirmance of the trial

court. This citation is at least curious as in Hansen, we reversed a trial
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court order based on our independent de novo review of the record. In

fact, Hansen stands for the proposition that no individual factor,

including past caretaking, is determinative on custody issues and that

courts should engage in a multi-factored analysis in determining the best

interest of the child.

      Brandon may not have been the primary care giver during the

marriage, but he understands the importance of providing a stable and

nurturing home for the children. If we give Brandon primary physical

custody, the children will reside in the only residence that has provided

them with some stability, the marital residence. The majority’s opinion

awarding custody to the mother because she was the primary care taker

in the past is not justified under this record. Heather’s post-separation

conduct is not an anomaly; it clearly establishes she has put the

children’s future at risk. The powerful nature of the evidence makes this

one of those cases where Heather’s conduct during the period of

separation should trump her parenting characteristics exhibited during

the marriage.

      I am not willing to gamble with the children’s future that Heather

will turn her life around before it is too late for the children to succeed.

She has had her chance and has not succeeded. I agree with the court of

appeals that the evidence establishes Brandon is the parent who will

likely best minister to the long-range best interests of the children.

Accordingly, I would reverse the district court, affirm the court of

appeals, and award physical care of the children to Brandon.

      Hecht and Appel, JJ., join this dissent.

      This is not a published opinion.
