                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1210
                              Filed April 30, 2014

NICHOLAS W. O’BRIEN,
     Petitioner-Appellant,

vs.

ELIZABETH WYGLE,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Howard County, Richard D. Stochl,

Judge.



      An unmarried father appeals the physical care and visitation provisions of

a custody decree. AFFIRMED.



      Roger Sutton of Sutton Law Office, Charles City, for appellant.

      Christopher O'Donohoe of Elwood, O’Donohoe, Braun, & White, New

Hampton, for appellee.




      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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TABOR, J.

       Nicholas O’Brien appeals the order granting physical care of their two

daughters to Elizabeth Wygle. He argues the district court should have ordered

joint physical care. In the alternative, he asks for additional visitation. As we find

the grant of physical care to Elizabeth and the visitation schedule to be in the

children’s best interest, we affirm.

I.     Background Facts and Proceedings

       Nicholas and Elizabeth lived together for three and one-half years but

never married. They had two children together, D.O. and L.O. At the time of

trial, D.O. was three years old and L.O. was two years old.            Nicholas and

Elizabeth lived together for ten months after the birth of L.O, but separated

because they could no longer get along. Nicholas now shares a house in Elma

with two male friends. Elizabeth lives with a new boyfriend in Fredericksburg.

The two communities are about thirty-six miles apart.

       Since the separation the children have lived with Elizabeth and Nicholas

has had open visitation. When the children visit Nicholas, all three stay at his

parents’ residence just outside of Cresco because Nicholas’s own house is not

set up for children. He testified he was waiting to move into a more suitable

residence until he received the custody decision of the district court.          Both

Elizabeth’s and Nicholas’s parents are heavily involved in the children’s lives and

help facilitate communication between Elizabeth and Nicholas.

       On September 19, 2012, Nicholas filed a petition for joint custody and for

physical care to be placed with him. On January 17, 2013, the district court
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entered a temporary custody and visitation order. The temporary order granted

joint custody, placed physical care with Elizabeth, and allowed liberal visitation

for Nicholas. The district court held trial on May 15, 2013. At trial, Nicholas

asked for joint custody and shared care of the children.         Elizabeth sought

physical care of the children with visitation for Nicholas.     The district court

entered its order on July 24, 2013. The court awarded Nicholas and Elizabeth

joint legal custody. It granted Elizabeth physical care of the children and entered

a visitation schedule subject to the parties’ mutual agreement to a different

schedule. Nicholas now appeals.

II.    Standard of Review

       Issues ancillary to a paternity determination are tried in equity. See Iowa

Code § 600B.40 (2011).         We review de novo decisions on child custody.

Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988) (noting legal analysis

employed in custody cases involving unmarried parents is the same as in

dissolution cases). “It is axiomatic that we are concerned above all else in child

custody cases with the best interests of the child.” Id. We aspire to place the

children in the environment most likely to bring them to healthy physical, mental

and social maturity. Id. We are not bound by the district court’s factual findings,

but we give them weight. Id.

III.   Analysis

       A. Elizabeth has been the primary caregiver of the children since
       their births. Did the district court act appropriately in granting her
       physical care?
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       The first question in this appeal is whether the court acted appropriately in

declining to grant Nicholas and Elizabeth joint physical care of their daughters. If

joint legal custody is ordered, the district court may grant the parents joint

physical care, upon the request of either party, or may choose one parent to be

the primary caretaker of the children. In re Marriage of Hynick, 727 N.W.2d 575,

579 (Iowa 2007). Joint physical care is a viable option when it is in the children’s

best interests, but no presumption exists in favor of joint physical care. In re

Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007) (explaining factors in Iowa

Code section 598.41(3)1 provide guidance to courts considering physical-care

issues). Physical care is defined as “‘the right and responsibility to maintain a

home for the minor child and provide for the routine care of the child.’”           Id.

(quoting Iowa Code section 598.1(7)).

       Iowa courts consider the following nonexclusive list of factors in

determining whether to grant joint physical care: (1) the historical care giving

arrangement for the children between the parents, (2) the ability of the spouses

to communicate and show mutual respect, (3) the degree of conflict between the

spouses, and (4) the degree to which the parents are in general agreement about



1
  The statutory factors include: whether each parent would be a suitable custodian;
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; whether the parents
can communicate with each other regarding the child’s needs; whether both parents
have actively cared for the child before and since the separation; whether each parent
can support the other parent’s relationship with the child; 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; whether one or both
the parents agree or are opposed to joint custody; the geographic proximity of the
parents; 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; a history of domestic abuse;
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their approach to parenting. In re Marriage of Hansen, 733 N.W.2d 683, 697–99

(Iowa 2007).

       Neither party disputes that Elizabeth has been the primary caretaker of the

children. While still living together, Elizabeth did the feeding and most of the

diaper changes, while Nicholas assumed a more limited parenting role.

Elizabeth testified: “He usually went to work, came home and went to bed after

eating, so I actually didn’t get much help. And it took him from May until that next

January to actually change a poopy diaper.”       Nicholas confirmed it took him

several months before he started helping with diaper changes: “You know, I had

to work into that.”

       After the parties separated, the temporary order provided Nicholas with

the opportunity to enlarge the amount of time he spent caring for his daughters.

On weeks where Nicholas did not have weekend visitation, he was granted

Sunday through Wednesday visits under the temporary order. But in the eight

weeks he had this opportunity, he only took the girls twice. While we understand

bad weather affected one of those opportunities, there were five other weeks

when he declined visitation.     Nicholas claims a situation with the daycare

prevented him from taking the children. In our review of the record, it appears

Nicholas was more concerned about paying for daycare when the children did

not attend than spending time with them.

       The record also suggests Nicholas has had only one overnight visit alone

with the children since the separation. His mother and father play a substantial

role in looking after the girls when they are with Nicholas. In his brief, Nicholas
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asserts he is being punished by the court for relying on his parents for help with

the children. We see nothing punitive in the district court’s order. While the

value of extended family in the children’s lives is undeniable, the problem is

Nicholas has not taken responsibility to stand on his own as a father. Nicholas

testified he was waiting for the court’s decision before securing a residence

appropriate for the children to live in. His reluctance to make that investment in

any regard underscores the correctness of the court’s physical care decision.

       We conclude the approximation of the care-giving from both before and

after the parents’ separation weighs heavily against joint physical care and

toward placing physical care with Elizabeth. See Hansen, 733 N.W.2d at 697

(noting non-determinative approximation principle ensures “any decision to grant

joint physical care is firmly rooted in the past practices of the individual family”).

       Moreover, Elizabeth and Nicholas have a hard time communicating with

each other due to the “joint hate between [them].” Because of their conflicts, they

often use their parents as intermediaries when dealing with issues relating to the

girls. The parties’ animosity and difficulty in exchanging information about the

children would make a joint physical care arrangement unworkable.

       Finally, the record does not offer much insight into the degree to which

Elizabeth and Nicholas agree or disagree in their approach to parenting.                 If

anything, Nicholas has not formulated his own approach to parenting because he

has ceded so much hands-on interaction to his parents. We find, considered

together, the Hansen factors support the district court’s decision to place physical

care with Elizabeth.
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          B.    Is the visitation schedule in the children’s best interests?

          As an alternative to his argument for joint physical care, Nicholas claims

the district court acted appropriately in not giving him maximum visitation under

Iowa Code section 598.41(1)(a). When establishing visitation rights, our guiding

light remains the children’s best interests. In re Marriage of Stepp, 485 N.W.2d

846, 849 (Iowa Ct. App. 1992). Generally, liberal visitation serves children’s best

interests. Id. Although section 598.41(1)(a) directs courts to reach a custody

determination with liberal visitation that “will assure the child the opportunity for

the maximum continuing physical and emotional contact with both parents,” that

directive is in the context of what “is reasonable and in the best interest of the

child.”

          The final order granted Nicholas visitation on alternate weekends, two

one-week sessions during summer vacation, and alternating holiday visitation.2

On appeal, he asks for two additional weeks of summer visitation, for a total of

“four (4) alternating weeks in the summer.”          And he requests “at least the

minimum of the temporary visitation Order with shared holidays at Christmas,

Thanksgiving, Spring Break, and other appropriate times.”

          It is unclear what Nicholas means by “shared holidays” in his appellate

brief. At trial, he testified his position on holidays was “just rotate back and forth.”

The final order provides for such “rotating” holiday visitation.

          We believe the district court's permanent visitation order is appropriate

and will give Nicholas significant time with the children while maintaining the

2
 For example, Nicholas will have the children on Memorial Day and Labor Day in even
numbered years and Memorial Day, Independence Day, and Thanksgiving in odd
numbered years.
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continuity of their care and minimizing disruptions in their schedules. But, if the

parents mutually agree to change the visitation schedule, they are free to do so.

       C. Is Nicholas entitled to attorney fees?

       Nicholas requests $3000 in appellate attorney fees. An award of attorney

fees is not a matter of right, but sits within the court’s discretion. In re Marriage

of Roberts, 545 N.W.2d 340, 345 (Iowa Ct. App. 1996). We consider the needs

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

the party making the request was obligated to defend the district court’s decision

on appeal. In re Marriage of Miller, 524 N.W.2d 442, 445 (Iowa Ct. App. 1994).

Because Nicholas is prosecuting, not defending this appeal, and has the financial

ability to pay his own attorney, we reject his request for appellate attorney fees.

We determine each party should pay his or her own attorney fees for this appeal.

We also direct Nicholas to pay the costs of the appeal.

       AFFIRMED.
