Custody Questions and Answers

Who has custody when a child is born to an unmarried mother?

• The mother usually has custody of her child if she is not married when the child is born.
• The mother can make decisions for the child and has the right to take care of the child.
• The father can “acknowledge” paternity.
  • This means he says he is the father.
  • If the father does this within a reasonable time after the child’s birth, then he and the mother both have rights regarding the child.

How is paternity of a child established?

• Both parents can sign a Paternity Affidavit; OR
• It can also be established by the court; OR
• As part of a child support order, a court decides who the father of the child is; OR
• The father can “acknowledge” paternity.
  
  The Iowa Department of Health and Human Services has information on using a Paternity Affidavit. https://secureapp.dhs.state.ia.us/customerweb/resources/General%20Info/Paternity%20Affidavit
  For more information on establishing paternity, see https://www.iowalegalaid.org/resource/fathers-rights-in-unmarried-situations

What does it mean to “acknowledge paternity”?

Iowa law does not define all the ways a man can “acknowledge” paternity. The word “acknowledge” refers to when a man admits that he is the father of the child. The man takes some action showing that he is the father.

This act could be:

• Signing a paternity affidavit;
• Signing the child’s birth certificate;
• Providing support to the child and mother; or
• Telling someone that the child is his son or daughter.

When paternity is acknowledged within a “reasonable” time after the birth of a child both parents have an equal claim to custody, until a court decides differently. The law does not clearly say what time is considered “reasonable.” Courts have ruled that seven years after birth is not reasonable.

Can I file a custody case without a lawyer?

• Yes, but there are a lot of rules you must follow.
• You do not have to use a lawyer. You can file a custody case without a lawyer.
• A lawyer can help you understand what to do.
• A lawyer can tell you what your rights are.
• “Pro Se” or “Self Represented Litigant” are the terms used to describe a person is filing by themselves.
• The Iowa Judicial Branch has free forms you must use to file or respond to a custody case if you do not have a lawyer. Free Court Forms

Do I have to hire a lawyer to do everything?

No, you can hire a lawyer to do only part of a case. It is called limited representation or unbundled legal services. For more information: https://iowalegalaid.org/resource/limited-representation-unbundled-legal-services/

We recently moved to Iowa. Can I file a custody case now?

In general, a child has to live in Iowa for 6 months before the Iowa courts can decide custody issues for that child in Iowa. Before then, another state might have to make decisions. For more information, see https://iowalegalaid.org/resource/the-uniform-child-custody-jurisdiction-and-enforcement-act/

My children are in an open Child in Need of Assistance (CINA) case. Will I need to file a custody case to get permanent custody?

When there is a CINA case open in juvenile court, the judge in that case has to give you permission to file a custody case. This is called “concurrent jurisdiction.” However, the juvenile court can enter a bridge order that will give permanent custody, physical care and visitation. For more information:  https://iowalegalaid.org/resource/custody-order-for-parents-with-open-cina-cases/

A CINA case was opened after I had already filed a custody case. Can my custody case go ahead?

Generally the custody case cannot go ahead when a CINA is open. This is because the juvenile court handling the CINA case has “exclusive jurisdiction” over the custody and placement of children in the CINA case. You can ask the juvenile court to give the court handling the custody case authority to decide custody and visitation issues while the CINA is open. This is called “concurrent jurisdiction.” If the juvenile court doesn’t grant concurrent jurisdiction, the custody case cannot go ahead.

What kinds of custody are there?

In general, custody refers both to where the child actually lives (physical custody) and which parent makes most of the decisions about the child (legal custody). These apply to all parents whether they are married or not.

Joint legal custody means both parents have a right to help make decisions about the child. 

• These includes decisions related to the child’s education, medical care, legal status, activities, religious instruction and other matters.
• Iowa law does favor joint legal custody.
  

Sole legal custody means one parent has the right to make decisions about the child. 

• A court may think it will be better for the child to have one parent making the decisions.
• The court must say that there is clear and convincing evidence that joint custody is unreasonable
• This means it is not in the best interest of the child.

Primary physical care (also sometimes called primary physical custody) means the right and responsibility to:

• Maintain a home for the minor child
• Provide for the routine care of the child

Shared physical care means an award of physical care to both parents. Both parents have rights and responsibilities toward the child such as:

• Shared parenting time
• Maintaining homes for the child
• Providing routine care for the child

Neither parent has rights superior to those of the other parent

What if domestic abuse has been involved in the situation?

• The court cannot automatically award joint legal custody to both parents if there has been a history of domestic abuse.
• The law assumes joint legal custody is not best in these cases.
• “History of domestic abuse” can mean any of the following:
  • Asking the court for a protective order
  • Receiving a protective order
  • The police have been called about domestic abuse
  • An arrest or conviction for domestic assault
• The court can award joint legal custody if there are special facts in cases where there is a history of domestic abuse.
• If there are no special facts for joint legal custody, sole legal custody will be awarded to one parent.

What does a court consider in giving sole legal custody?

• A court will consider these things (among others) to decide on whether sole legal custody should be given:
  • A parent’s immoral behavior that is bad for the child
  • Having a “boyfriend” or “girlfriend” may be immoral behavior, but it may not be bad for the children
  • A parent’s mental illness if this will interfere with the child’s health, safety or welfare
  • A parent’s substance abuse (alcohol or drugs)
  • A parent who is violent or abusive
  • Joint custody will not work well for the parents
  • A history of domestic abuse in the relationship of the parents.

If there is joint legal custody, how does the court decide where the child will live?

The court can give one parent “primary physical care.” This means the child lives with one parent more than the other parent.

The court can instead give both parents “shared physical care,” which is also called “joint physical care.” This means that both parents can have roughly equal time with their child.

How does the court decide whether to give primary physical care to one parent or shared physical care to both parents?

• Either parent can ask for shared physical care.
• The court can deny the request.
• If the court denies the request, the court has to say why shared physical care is not in the best interest of the child.
• If the court decides to give shared physical care, it can affect child support, public benefits and the tax filing status such as “Head of Household” versus “Single” filing status, or eligibility for important tax credits such as the Earned Income Tax Credit.

If the court decides that one parent will get primary physical care, how does the court decide which parent it will be?

• The court looks at many factors when deciding who will have primary physical care.
• It is hard to say which factors are most important to the court.
• The factors the court looks at are:
  • Facts about the child such as their age, maturity, and mental and physical health.
  • Needs of the child such as emotional, social, moral, material, and educational needs.
  • Facts about each parent including age, stability, mental and physical health, and character.
  • The interest and ability of each parent to provide for all of the needs of the child.
  • The relationship between each parent and the child.
  • The relationship between the child and any brothers or sisters of the family.
  • The effect on the child if the court continues or changes the custody arrangement.
  • The home environment that the child will be living in.
  • The court may look at whether one party moves frequently from one home to another, while the other party has lived at the same place for a longer time.
  • Where the child wants to live.
    • The importance the court gives this factor depends on how old and mature the child is.
  • Recommendation of an independent person who investigated both parties about who should get primary physical care.
  • Recommendation of an attorney representing the child.
  • Any other options available for physical care.
  • If awarding physical care to one parent would separate siblings.
  • Any other important information that was given to the court.
• The parent the child lives with is often called the “custodial parent.”
• The other parent is often called the “non-custodial parent.”
• The information you post on social media can be looked at by the court. For more information on how your social media post can impact your custody case, see https://iowalegalaid.org/resource/how-social-networking-can-be-used-against-peo/

What if someone calls the police during a custody or visitation dispute?

• The police (or sheriff) do not respond to a custody dispute the same way the court does.
• Law enforcement usually does not like to get involved in civil (as opposed to criminal) matters.
• Law enforcement does not decide who should have custody of a child or when visitation should end.
• Law enforcement may enforce orders that already exist.
• Law enforcement cannot make new orders.
• Law enforcement will not usually get involved in custody or visitation disputes between parents unless;
  • There is a court order to enforce
  • The safety of the child is at risk.
• This is true whether a child’s parents are married or unmarried.
• Whether paternity has been “acknowledged” or not may not matter to law enforcement.

How is a custody decision made by the court?

First the court looks at whether or not the court has “jurisdiction.”

• Jurisdiction means the court has the authority to hear the case and to decide who should have custody of the children.
• Jurisdiction is typically only an issue if the child or the child’s parents have lived in another state in the past.
• Jurisdiction can be very complicated.
• The court considers many things in deciding whether it has jurisdiction including:
  • If there is a custody order in another state.
  • Where the child lived for the last six months
  • If there is any emergency reason that a court in Iowa should decide custody now.

For more information, see https://iowalegalaid.org/resource/the-uniform-child-custody-jurisdiction-and-enforcement-act/.

I can’t agree with the other parent, how do we solve the problems we have?

• You should make a list of things you need to decide.
• If you cannot agree on how to solve the problems, you may need to talk to an attorney.
• An attorney can tell you about your rights
• You may also want a mediator to help you. A mediator is someone who helps two people make an agreement.
• Some Iowa courts may require you to go to a mediator.
• If you do not agree, you may need a trial so you and the other parent can tell the Court what you want.
• A judge is different from a mediator. A judge can tell you what you both must do.
• What the judge orders may be different from what you or the other parent wants.
• Your custody case will take longer if you have a trial.
• It is better if you and the other parent can decide what you want. For more information on mediation, see https://iowalegalaid.org/resource/resolving-family-law-problems-through-mediation/.

What if one parent refuses to allow visitation to the other parent and there is no court order about visitation?

This is the same for married and unmarried parents. When there is no court order about visitation, the parent that has the child can make decisions for the child. The parent that has the child is responsible for the child’s well-being and safety. If the parent thinks the child will be in danger during visitation they could try supervised visits. But refusing visitation can cause problems. A court could later use the refusal when deciding who gets custody. A court will look at the reasons for the refusal.

A parent should not refuse visitation because child support isn’t being paid. There are other ways to collect child support. For help collecting child support, contact the Child Support Recovery Unit or a private attorney.

What if one parent has concerns about what might happen while the other parent has visitation and there is a court order setting up visitation?

• If there is a court order for visitation, the court order must be obeyed.
• The person violating the order could be found to be in contempt of the order.
• If found in contempt, the person could be ordered to pay money or be put in jail.
• Only a judge can change a visitation order.
• The proper way to challenge a court order is to ask the court to change the order.
• Remember:
  • Each case is unique.
  • The court may decide each case differently in deciding where the child or children should live.
  • The court may look at different things in each case when making their decision.

What if the custody or visitation arrangement isn’t working anymore?

You can file a petition to modify the custody or visitation order. To be successful, you would need to show that there has been a substantial and material change in circumstance and that the change is permanent. For more information on modifying a custody order, see https://iowalegalaid.org/resource/how-to-modify-a-custody-order/ 
For more information about custody and visitation, download Iowa Legal Aid’s printed booklet “Child Custody and Visitation in Iowa”