DES MOINES — The Iowa House voted Wednesday to change how custody is handled when parents separate or divorce by requiring judges to award joint legal custody as well as joint physical custody of their children.
The exception would be in cases where a court finds that joint custody would result in direct physical or emotional harm to children.
“I think a lot of people agree the starting point (in custody cases) should be 50-50, but we still want to make sure the judge has discretion and the court doesn’t have its hands tied,” floor manager Rep. Ken Rizer, R-Cedar Rapids, said after the bill was approved 56-41 on Wednesday evening.
Critics agreed that House File 2401 would shift the starting point from “the best interest of the child,” according to Rep. David Dawson, D-Sioux City, a lawyer who handles custody cases, to a presumption that joint legal and physical custody is the best arrangement.
However, current law “starts with the court picking a winner,” according to Rep. Norlin Mommsen, R-DeWitt, who offered an amendment to Rizer’s proposal. It would call for joint physical care, which refers to where a child lives. Joint custody applies to the decision-making involved in raising a child.
The person “who would be considered the loser has to fight their way or prove why they aren’t the loser,” Mommsen said. “This lets both parties start at the same level.”
While that would be true if the bill is approved by the Senate and signed by the governor, Dawson argued the “best interest of the child should always be considered first”
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“This puts a presumption in the law that it’s in the best interest of the child to spend 50-50 with their parents,” he said. “That’s not always the case, and you should not create a legal presumption when it’s not true most of the time.”
Mommsen and Rizer said it’s in the best interest of children to spend as much time as possible with both parents. Mommsen, who said he is divorced, has seen many friends lose touch with their children because joint custody was not awarded. Rizer said he has heard similar concerns from constituents.
Dawson said a presumption already prevails that joint legal custody will be awarded.
“This is basically adopting in law what the practice is based upon what Supreme Court holdings have been about decision-making authority,” Dawson said.
Mommsen’s amendment was adopted after majority Republicans suspended House rules to consider his amendment that had been ruled not germane to HF 2401. Before being amended, HF 2401 called for a “preference for joint physical care of a child in awarding custody.”
Mommsen’s amendment said the court “shall provide for joint custody of the child by the parties ... including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents ... and which will encourage parents to share the rights and responsibilities of raising the child” unless physical or emotional harm to the child, other children or a parent is likely to result.
The final 56-41 vote largely was along party lines. Four Democrats voted for it and four Republicans voted “no.”
Rizer said he understands there are concerns with the measure and hopes to work with senators to improve its language.