                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0687
                            Filed October 26, 2016


LUKE A. GIEGERICH,
     Petitioner-Appellee,

vs.

SAMANTHA A. LAHR,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      Samantha Lahr appeals the district court’s order placing physical care with

Luke Giegerich and determining the child’s surname. AFFIRMED.




      Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.

      Kim C. Roddick of Reynolds & Kenline, L.L.P., Dubuque, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Samantha Lahr appeals the district court’s order placing physical care with

Luke Giegerich, the child’s father, and determining the child’s surname. We find

there are communication problems between the parents, Samantha has not

supported Luke’s role in the child’s life, and there is a history of conflict between

the parents. These findings support placing physical care with Luke. We also

find the child should be given the Luke’s surname because the child will live with

Luke and Samantha is unsure if she will change her name if she remarries,

potentially causing the child to not share a surname with a family member.

Accordingly, we affirm.

   I. Background Facts and Proceedings

       Samantha and Luke dated from February 2013 to October 2013, and lived

together during their relationship. Samantha is married to Jesse Lahr, though the

two had been estranged for some time before her relationship with Luke. She

and Jesse had two children. After difficulties in their relationship and learning of

Samantha’s pregnancy, Luke and Samantha broke up. Samantha told Luke the

child was Jesse’s so Luke had “an easy way out the door” which she “thought

was best at the time.” Although knowing of his whereabouts since their breakup,

Samantha waited six months to inform Luke of the child’s birth. A DNA test later

confirmed Luke was the father and the parents began to discuss establishing a

relationship between Luke and the child. The parties agreed to visitation, and,

after some time, a temporary visitation order was entered.

       Luke filed an action to establish paternity, custody, physical care,

visitation, and child support. Luke asked for joint legal custody and joint physical
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care.   Because the child was born during Samantha’s marriage, Jesse was

presumed to be the legal father. He was joined as a third party to the action and,

eventually he was disestablished as the child’s legal father. Samantha and Luke

attended mediation and agreed to all the issues, including the child’s surname,

except the division of physical care. A hearing was held on January 7, 2016,

where Jesse, Samantha, Luke, and other relatives testified regarding paternity,

custody, visitation, and child support.

        At the close of the hearing the district court asked what the child’s

surname would be.       The parties reported the child would take the mother’s

maiden name, which Samantha stated she would assume after her divorce from

Jesse was final. The court expressed dissatisfaction with this arrangement at

which point Luke asked that the child be given his surname.

        The district court subsequently entered a ruling ordering joint legal custody

and placing physical care with Luke, as well as ordering the child’s surname be

changed to Giegerich. Samantha appeals the order of physical care and the

order to change the surname.

   II. Scope of Review

        Our review of equitable actions is de novo. Iowa R. Civ. P. 6.907. We

have a duty to examine the entire record and adjudicate anew the rights on the

issues properly presented. In re Marriage of Williams, 589 N.W.2d 759, 761

(Iowa Ct. App. 1998).      We will defer to the district court’s determinations of

credibility as the court has a unique opportunity to hear the evidence and view

the witnesses. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).
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   III. Physical Care

       Our supreme court has established a non-exclusive list of factors we are

to consider in deciding what arrangement of physical care is in the best interests

of the child. They are: (1) stability and continuity of caregiving, (2) the parents’

ability to communicate, (3) a history of conflict between the parents, and (4) the

degree to which the parents agree to a parenting approach. See In re Marriage

of Hansen, 733 N.W.2d 683 (Iowa 2007).           These factors apply whether the

parents are married or unmarried. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa

1981). Our supreme court also points us to the Iowa Code for additional factors

to consider.    Hansen, 733 N.W.2d at 696 (“Although Iowa Code section

598.41(3) does not directly apply to physical care decisions, we have held 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.”). The

code’s factors are as follows:

       3. 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.
       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 into
       consideration the child's age and maturity.
       g. Whether one or both the parents agree or are opposed to joint
       custody.
       h. The geographic proximity of the parents.
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       i. Whether the safety of the child, other children, or the other parent
       will be jeopardized by the awarding of joint custody or by
       unsupervised or unrestricted visitation.
       j. Whether a history of domestic abuse, as defined in section 236.2,
       exists. In determining whether a history of domestic abuse exists,
       the court’s consideration shall include but is not limited to
       commencement of an action pursuant to section 236.3, the
       issuance of a protective order against the parent or the issuance of
       a court order or consent agreement pursuant to section 236.5, the
       issuance of an emergency order pursuant to section 236.6, the
       holding of a parent in contempt pursuant to section 664A.7, the
       response of a peace officer to the scene of alleged domestic abuse
       or the arrest of a parent following response to a report of alleged
       domestic abuse, or a conviction for domestic abuse assault
       pursuant to section 708.2A.
       k. Whether a parent has allowed a person custody or control of, or
       unsupervised access to a child after knowing the person is required
       to register or is on the sex offender registry as a sex offender under
       chapter 692A.

Iowa Code § 598.41(3) (a)-(i) (2015).

       We are also careful to note “[t]here is no preference for mothers over

fathers, or vice versa.” Hansen, 733 N.W.2d at 700.

       In the case before us, we find the most important factors to consider are

the parents’ ability to communicate with each other regarding the child’s needs,

whether a parent will support the other parent’s relationship with the child, and

the history of conflict between the parents.

       Throughout trial Samantha complained she and Luke could not effectively

communicate; Luke consistently testified they had an excellent relationship and

co-parented well.      At trial Samantha also complained Luke refused to

communicate when the child had last eaten, slept, and other similar information.

Luke denied this and asserted he was very communicative. Samantha further

complained Luke refused to share clothing, toys, and shoes, going so far as to

take shoes off the child when Samantha resumed care.            Luke claims these
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instances are isolated and only happen when no other clothes or shoes would be

left at his house.

       Testimony at trial showed Samantha did not consistently support Luke’s

role in the child’s life. Samantha continually encouraged a father-like relationship

between the child and both her current boyfriend and her estranged husband.

While encouraging a relationship between the child and her boyfriend and

especially with the father of the child’s half-siblings is not necessarily wrong,

when it comes at the expense of the child’s relationship with the father it can

become damaging to the child’s development. Luke, on the other hand, has

neither shown a tendency to introduce a usurper of Samantha’s role nor

encouraged disharmony between Samantha and the child.

       Finally, while Samantha and Luke showed a commendable ability to

compromise at mediation, any veneer of cooperation and goodwill has been

erased. The fragility of the agreement, along with the hostility of the trial and

appeal, demonstrates to us a good deal of conflict exists between the parties.

       On the balance of these factors, we affirm the district court’s decision to

place physical care with Luke.

   IV. Surname of the Child

       While the district court and both parties phrase this issue as a name

change, it is not. Instead it is an appeal of the district court’s ruling on an initial

determination of the child’s name. A mother does not have the right to name the

child by virtue of custody at birth, and a parent should gain no advantage from

unilaterally naming the child. In re Marriage of Gulsvig, 498 N.W.2d 725, 729
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(Iowa 1993) (citations omitted).      The district court’s ruling was therefore to

determine Luke’s challenge to the name chosen by Samantha.

      In initially determining the child’s surname “our focus is the best interests

of the child.” Montgomery v. Wells, 708 N.W.2d 704, 708 (Iowa Ct. App. 2005).

We have not been provided an exhaustive and definitive list of factors, but our

court has considered the following:

      (1) Convenience for the child to have the same name as or a
      different name from the custodial parent.
      (2) Identification of the child as part of a family unit.
      (3) Assurances by the mother that she would not change her name
      if she married or remarried if the child maintains the mother’s
      surname.
      (4) Avoiding embarrassment, inconvenience, or confusion for the
      custodial parent or the child.
      (5) The length of time the surname has been used.
      (6) Parental misconduct, such as support or nonsupport or
      maintaining or failing to maintain contact with the child.
      (7) The degree of community respect associated with the present or
      changed name.
      (8) A positive or adverse effect a name change may have on the
      bond between the child and either parent or the parents’ families.
      (9) Any delay in requesting or objecting to name change.
      (10) The preference of the child if the child is of sufficient maturity
      to express a meaningful preference.
      (11) Motivation of the parent seeking the change as an attempt to
      alienate the child from the other parent.
      (12) And any other factor relevant to the child’s best interest.

      Id. at 708-09 (citations omitted).

      The parties agreed to give the child Samantha’s maiden name, though

she plans to resume that name only when her divorce from Jesse is final.

Testimony showed Samantha intended to marry her boyfriend and would again

change her last name. We share the lower court’s concern the child will not be

identified with the family unit should she marry and change her name, as the

mother, father, and half-siblings would not share the child’s surname.
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Additionally, as the child has been placed with the father, it will be most

convenient for both the child and the custodial parent for the child’s surname to

be Giegerich. Therefore, we affirm the decision of the district court.

       AFFIRMED
