Child Relocation After Divorce In Iowa
"The controlling consideration in child custody cases is always what is in the best interests of the children." In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa App. 1998); see also Iowa R. App. P. 14(f)(15).
This consideration is interwoven into the modification standards applicable to such cases. Frederici, 338 N.W.2d at 158 ("To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change").
In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa App. 1994) ("The parent seeking to modify child visitation provisions of a dissolution decree must establish by a preponderance of evidence that there has been a material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children.").
In Jerome, 378 N.W.2d at 303 we allocated the burdens between the: the parent seeking to change who had physical care of the parties' children was required to prove a substantial change of circumstances and an ability to minister more effectively to the children's well-being while the parent seeking to move the children out of Iowa was required to prove only a change in circumstances justifying a change in visitation. Id. at 304-05.
"Our case law places greater importance on the stability of the relationship between [children] and their primary caregiver than on the physical setting of the children." In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa App. 1998).
1997 Iowa Acts ch. 175, 190 section 598.21(8A) changes the law applicable to custody modification requests triggered by one parent's long-distance relocation. the statute reads, in part, as follows:
If a parent awarded joint legal custody and physical care or sole legal custody is relocating the residence of the minor child to a location which is one hundred fifty miles or more from the residence of the minor child at the time that custody was awarded, the court may consider the relocation a substantial change in circumstances.
If the court determines that the relocation is a substantial change in circumstances, the court shall modify the custody order to, at a minimum, preserve, as nearly as possible, the existing relationship between the minor child and the nonrelocating parent. If modified, the order may include a provision for extended visitation during summer vacations and school breaks and scheduled telephone contact between the nonrelocating parent and the minor child.
A court should not try to predict the future for families, nor should it try to limit or control their actions by such provisions. Cf. Hovater v. Hovater, 577 So. 2d 461, 463 (Ala. Civ. App. 1990) ("We find, however, the custodial reversionary clause in this instance to be of no effect because it is premised on a mere speculation of what the best interests of the children may be at a future date.");
Bell v. Bell, 572 So. 2d 841, 845 (Miss. 1990) ("We regard it [a] particular folly to decree in advance--at a time when one child may be twelve and another six--that it will be in their best interest to remain in a given community until they become adults. This is simply something that no individual and certainly no court can know."); Wilson v. Wilson, 12 Va. App. 1251, 408 S.E.2d 576, 579 (Va. App. 1991) ("A move from Nashville to another location at some time in the future may prove to be in the son's best interests.
However, this cannot be determined until the move is contemplated and all the circumstances associated with it are known").