In re Marriage of Cerwick - 834 N.W.2d 872 (Iowa Ct. App. 2013)

Rule:

The courts do not require the parties to use magic words to request joint physical care of children. Nor are the Iowa courts interested in creating a trap for the unwary with respect to something so paramount. Iowa Code § 598.41(5)(a) (2011) makes clear, however, that the district court may consider joint physical care upon the request of either party. The legislature could have provided that the district court may consider joint physical care whenever the best interest of the children so required—rather than upon the request of either parent. It did not do so.

Facts:

In early 2011, Justin and Machelle separated. Machelle left the marital home; Justin remained in the martial home with their three minor children. After marital counseling failed, Justin filed for divorce in April 2011. In February 2012, the district court held a trial on the dissolution of marriage petition. The court awarded Justin and Machelle joint physical care, divided martial debts and property, and ordered minimal child support. Justin appealed the court’s joint physical care order, contending that the district court err in awarding joint physical care because neither he nor Machelle requested joint physical care.

Issue:

Did the district court err in granting Justin and Machelle joint physical care of their three minor children, notwithstanding the fact that neither of the parties requested joint physical care?

Answer:

Yes.

Conclusion:

Because neither party requested joint physical care of three young children as required by Iowa Code § 598.41(5)(a), the issue of joint physical care was not properly before the district court. Both parties essentially conceded joint physical care was not appropriate due to acrimony. Thus, the court found that Justin was entitled to physical care.