                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0350
                               Filed November 23, 2016


Upon the Petition of
JAUN-PAUL LEE BANNISTER,
      Petitioner-Appellee,

And Concerning
AMBER DAWN BUBAN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Randy S.

DeGeest, Judge.



      A mother appeals the district court decision granting the father physical

care of the parties’ child. AFFIRMED.




      Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, L.L.P.,

Marshalltown, for appellant.

      Philip J. De Koster of De Koster & De Koster, P.L.L.C., Hull, and Diane

Crookham-Johnson of Crookham-Johnson Law Office, P.L.L.C., Oskaloosa, for

appellee.



      Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

      Amber Buban appeals the district court decision granting Jaun-Paul

Bannister physical care of the parties’ child, A.B. We agree with the district

court’s finding the child’s best interests are served by granting Jaun-Paul

physical care of the child. We affirm.

   I. Background Facts and Proceedings

      Amber Buban and Jaun-Paul Bannister began their relationship in 2008

and it was tumultuous from the beginning. Amber became pregnant shortly after

the relationship began, and she and her child, H.B., moved in with Jaun-Paul.

Before A.B. was born in 2009, the couple had broken up and reconciled, though

Amber was still living apart from Jaun-Paul. The relationship was on and off, the

couple lived apart occasionally, and shared custody and care of A.B. In 2012,

the parties separated permanently.       Jaun-Paul then took a job in Oskaloosa,

while Amber remained with A.B. in Grinnell.

      Visitation issues began to increase and cause friction. During this time

Jaun-Paul remained active in A.B.’s life, attending t-ball and wrestling practices

and events regularly, even though he lived forty miles away. A civil protection

order was filed against Jaun-Paul because of a threat he made after Amber’s

boyfriend had spanked A.B. Subsequent testimony on this issue showed at least

part of Amber’s motivation for asking for the civil protective order was a “free”

custody review.    A no-contact order was entered and a visitation schedule

granting alternate weeks to the parents was established. The order expired in

January of 2015.
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       Tensions continued to rise concerning kindergarten. Amber and Jaun-

Paul registered A.B. for school in Grinnell and Oskaloosa respectively. Amber

claims no agreement had been made concerning where A.B. would attend

school, and she registered him to continue classes in Grinnell. Jaun-Paul claims

Amber agreed to enroll A.B. in Oskaloosa in exchange for enrolling him in

Grinnell for preschool.

       In May an incident occurred indicating A.B. may have sexually abused an

unrelated child in Amber’s care and may have been sexually abused by his

half-brother, Jaun-Paul’s son. This increased tension between Amber and Jaun-

Paul even further. An investigation was conducted which concluded no sexual

abuse had occurred. Jaun-Paul employed a counselor for A.B., Jane Kelderman,

a family friend and licensed social worker, in order to help A.B. deal with the

stress of the investigation.

       Jaun-Paul filed a petition for custody in April and mediation was conducted

in June.   A.B. was to be in Jaun-Paul’s care every other week through the

duration of the summer, until trial could be held to determine physical care. The

trial could not be scheduled before school began and a temporary custody order

was issued which granted physical care to Jaun-Paul. As a result, A.B. began

kindergarten in Oskaloosa.

       The parents have continued to argue over matters surrounding A.B.’s

custody, such as the location of exchange of the child and flexibility in

scheduling. The trial was held over two days, January 7 and 14, 2016. The

district court entered its decree awarding joint legal custody, with physical care to

Jaun-Paul. Amber was also required to pay child support. Amber appeals.
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   II. Standard of Review

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

examine the record and adjudicate the rights of the parties anew. In re Marriage

of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998).          We recognize the

district court’s unique opportunity to hear the evidence and view the witnesses

and so defer to its determinations of credibility. In re Marriage of Brown, 487

N.W.2d 331, 332 (Iowa 1992).

   III. Best Interests of the Child

      A non-exclusive list of factors has been set out by our supreme court and

used to determine the best interests of the child when deciding physical care. In

re Marriage of Winter, 223 N.W.2d 165 (Iowa 1974). We also consider portions

of the Iowa Code. In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).

(“Although Iowa Code section 598.41(3) [(2015)] 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.”). We apply these factors no matter the martial

status of the parents. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). We also

note “[t]here is no preference for mothers over fathers, or vice versa.” Hansen,

733 N.W.2d at 696.

   A. Expert Witnesses

      Both Amber and Jaun-Paul focus a great deal of their argument on the

expert witnesses presented at trial. In its findings of fact and conclusions of law,

the district court found Amber’s expert’s testimony and report was “not a

complete and neutral report as the preparer of the report did not meet with Jaun-
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Paul, nor is the Court convinced the testing was neutral.”        Amber’s expert

testified he had invited Jaun-Paul to be present at A.B.’s testing. However, it is

unclear if Jaun-Paul understood or was given clear instructions of what was

needed of him. Jaun-Paul testified he had been contacted and asked for records

regarding A.B.’s counseling with Kelderman but had not been given other

instructions. There was some evidence presented that the test results would not

be affected by Jaun-Paul’s failure to attend, but we agree with the district court

the test results are suspect.      However, we do give some weight to the

conclusions of the report.

      Jaun-Paul’s expert, Kelderman, has been a long-time friend of his wife

and attended their wedding. Kelderman also served as A.B.’s counselor after a

particularly troubling incident. Kelderman submitted a report for the temporary

hearing recommending Jaun-Paul be granted custody, without disclosing the

nature of her personal relationship with the family. However, at trial Kelderman’s

bias was effectively disclosed to the district court. Kelderman also conceded she

was unable to make an objective recommendation to the court regarding physical

care. The district court made no mention of Kelderman’s testimony in its ruling.

We find Kelderman’s bias is too strong to allow us to give any weight to her

recommendation regarding physical care.         We have only considered her

testimony regarding the counseling services she provided to A.B..

   B. Best Interests Factors

      Before determining what physical care arrangement is in the best interests

of A.B. we first note, in agreement with the district court, that A.B. consistently

attempts to please both parents. However, not inspired by their child’s example,
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both parents have demonstrated an inability to consistently place A.B.’s best

interests and happiness above their own disagreements. Both have attempted to

manipulate or deny visitation to punish the other parent in the past.

Notwithstanding the parent’s behavior toward each other, both parents have

proven themselves capable and willing to provide for A.B.’s needs and care.

      We also agree with the district court in finding both parents present

concerns for A.B.’s custody. Amber has not always shown good judgment in

those she associates with and exposes A.B. to, including Amber’s sister, who

used drugs and attempted suicide in the home while A.B. was present. Jaun-

Paul has displayed some inability to control his emotions. He has also been

involved in two instances of domestic assault. There are some mitigating factors

concerning the domestic assaults. The first incident occurred in 1996 and was

described by Jaun-Paul’s ex-wife, the victim, as “not a big deal.” She did not call

the authorities and charges were brought only after hospital staff were required to

report it. The second instance, against Amber, resulted in a protective order and

centered on an argument about custody and involved no physical assault. None

of these failings precludes either parent from care but they do influence our

decision.

      Amber claims Jaun-Paul has not supported her relationship with A.B. by

refusing to allow early pick-up for weekend visits and requiring Amber to pick-up

A.B. at the YMCA near Jaun-Paul’s house instead of at his residence. Jaun-Paul

has been documented confronting Amber, and those with her, during the pick-

ups as well as making rude gestures. Jaun-Paul’s inflexibility in scheduling and

behavior during pick-ups shows a tendency to increase conflict between the
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parties which undermines the relationship between A.B. and Amber and must be

taken into account when considering physical care. We do not find Jaun-Paul’s

insistence on a neutral meeting location to be inappropriate.         Jaun-Paul is

demonstrating reasonable concern by using a neutral location considering the

history of conflict between the parties. Jaun-Paul also has a large support group

in the Oskaloosa area.

      Amber further claims it is in A.B.’s best interest to remain with his half-

sibling, H.B., and therefore in Amber’s care. Iowa courts have recognized the

importance of a relationship between siblings and included it as a factor for

consideration in determining physical care.        Winter, 223 N.W.2d at 166.

Testimony at trial was contradictory relating to the relationship between H.B. and

A.B. Amber testified H.B. and A.B. get along well and miss each other. Jaun-

Paul presented testimony A.B. feels picked on by H.B. and the other children in

Amber’s house, and he plays in his room alone. While A.B. also has a half-

sibling, as well as step-siblings through Jaun-Paul, the half-sibling does not live

with Jaun-Paul. This factor weighs in Amber’s favor.

      While both parents are capable of serving as the sole provider of physical

care, we find Jaun-Paul has demonstrated a stronger commitment to A.B.’s best

interests, greater stability in routine and relationships, a continuity of care, and

ability to focus on A.B. Amber has been a good mother to A.B. but has elected

not to exercise her mid-week visitation due to her inability to balance her

obligations with her daughter, her boyfriend, and his children.          While her

dedication to her daughter and family are laudable, being unable to prioritize and
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exercise this visitation shows a lack of commitment to A.B.’s best interests.1

Additionally, the weight of testimony showed Amber’s home is less routine based

and more chaotic.     This environment negatively affects A.B.’s behavior and

development.

       Therefore, we affirm the decision of the district court.

       AFFIRMED.




1
 The record notes that in a four-month period, Amber exercised mid-week visitation on
one occasion.
