                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1726
                              Filed June 11, 2014


STEVEN KLEMAS,
     Plaintiff-Appellant,

vs.

CINDY HOLLAND,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Paul W.

Riffel, Judge.



       Steven Klemas appeals from the district court’s award of physical care of

the parties’ daughter to Cindy Holland. AFFIRMED.




       Mark A. Young of Young Law Office, Mason City, for appellant.

       Sarah A. Reindl, Mason City, for appellee.



       Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.

        Steven Klemas, the father, appeals from the district court’s award of

physical care of their daughter to the mother, Cindy Holland. He argues the

district court should have awarded joint physical care. We affirm the award of

physical care to Cindy.

   I. Facts and Proceedings.

        Steven and Cindy were married in 2002. The marriage was dissolved in

2006.    The parties had a child together in 2011.         Steven filed a petition to

disestablish paternity on May 3, 2012, requesting paternity testing, visitation and

legal rights to the child, establishment of child support, and the child’s last name

be changed to Klemas. Prior to trial, the parties entered into a stipulation on

temporary matters, which included shared physical care. The parties did not

equally have parenting time with the child, however. Cindy cared for the child

more than two-thirds of the time prior to trial. Steven averaged seven overnights

per month of visitation, although he exercised liberal visitation during the morning

hours before he started work.

        The court held trial on the petition July 11, 2013. After its careful review of

the facts and consideration of the law, the district court found the following:

        [S]hared physical placement is not in the best interest of the parties’
        child, under the facts presented in this case. While the parties’
        stipulation regarding temporary matters alluded to “shared
        parenting time” and “shared physical care of the child’’ Cindy has
        been the child’s primary caregiver since birth. To his credit, Steven
        has exercised liberal visitation during daytime hours on weekdays
        when Cindy is at work and to her credit, Cindy has cooperated in
        that endeavor. However, the record reflects that since their
        stipulation the parties have not equally shared in providing for [the
        child]’s physical care. Steven has been averaging only about
        seven days per month of overnight visitation with [the child] during
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       2013 and while he would like to minimize a parent’s responsibility
       during a child’s sleeping hours, the fact remains that a parent’s
       responsibility does not end when a child goes to bed. That fact has
       been recognized by the Supreme Court of Iowa. Rule 9.9 of the
       Iowa Rules of Court provides that if a non-custodial parent’s
       visitation exceeds 127 days per year, he/she shall receive a credit
       to his/her share of the basic support obligation but for purposes of
       the credit/‘days’ means overnights spent caring for the child. For
       more than two-thirds of every month Cindy has been [the child]’s
       primary caregiver during weekdays from the time she gets home
       from work in the evening until she leaves for work the following
       morning and for 24 hours on her days off. Consequently, Cindy
       has been the parent providing for [the child]’s primary residence
       and performing the day-to-day chores associated therewith
       including cooking, cleaning and laundering. It is in [the child]’s best
       interest that Cindy continue in that role.
               The Court further concludes that Steven is entitled to liberal
       visitation which will assure the child the opportunity for maximum
       continuing physical and emotional contact with both of her parents.
       The visitation hereinafter decreed is intended to be the minimum
       and the parties will be expected to reasonably communicate and
       cooperate with each other in arranging additional visitations.

       Steven appeals from this portion of the order.

   II. Analysis.

       Our review of this matter is de novo. Melchiori v. Kooi, 644 N.W.2d 365,

368 (Iowa Ct. App. 2002). In In re Marriage of Hansen, our supreme court laid

forth four non-exclusive factors when determining if joint physical care is in a

child’s best interests.   733 N.W.2d 683, 697–700 (Iowa 2007).           These are:

stability and continuity, ability of the parents to communicate, the degree of

conflict, and the degree of general agreement about parenting. Id. The court

emphasized:

       [I]mposing a new physical care arrangement on 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.
               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
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       the same quality. Conversely, however, long-term, successful, joint
       care is a significant factor in considering the viability of joint
       physical care . . . .
              ....
              All other things being equal, however, we believe that joint
       physical care is most likely to be in the best interest of the child
       where both parents have historically contributed to physical care in
       roughly the same proportion. Conversely, where one spouse has
       been the primary caregiver, the likelihood that joint physical care
       may be disruptive on the emotional development of the children
       increases.

Id. at 697–98 (internal citations omitted).

       On appeal, Steven insists that the parties actually had joint physical care

under the temporary stipulation arrangement prior to trial, though the parties’ time

with the child was not equivalent. He also seeks to minimize the importance of

overnight care when considering whether to award joint physical care. He also

argues we should apply the standard for modification of custody in this matter,

though he admits this is not a modification order.

       “While we believe that in many contested cases, the best interests of the

child will not be advanced by joint physical care, the courts must examine each

case based on the unique facts and circumstances presented to arrive at the

best decision.” Id. at 700. The child will have the most stability and continuity

with physical care awarded to Cindy and liberal visitation to Steven. We affirm

the district court. Costs on appeal are taxed to Steven.

       AFFIRMED.
