English
EspañolWho can get custody?
When married parents separate or get divorced, either parent or both parents can get custody of the child.1
If a child’s parents are not married, then the mother has sole custody of the child unless:
- the father has signed an acknowledgment of paternity; or
- a judge has ordered something else.2
After legal fatherhood (paternity) is established, the father has the right to file for custody or visitation.2
1 Iowa Code § 598.41
2 Iowa Code § 600B.40(1)
Can a parent who committed domestic violence get custody or visitation?
If the judge believes there is a “history of domestic abuse,” there is a “rebuttable presumption” against the abuser getting joint custody. This means that judge will assume the parents should not get joint custody. However, a parent can try to change the judge’s mind. The parent can present evidence to show why joint custody is in the child’s best interest despite the domestic abuse.1
To decide if there is history of domestic abuse, the judge will look at whether or not:
- an application for a protective order was filed against the abuser;
- a protective order was issued against the abuser;
- the abuser violated a protective order;
- the police were called for domestic abuse;
- the abuser was arrested for domestic abuse; or
- the abuser was convicted of domestic abuse assault.2
A history of domestic abuse should be given more weight than all the other factors a judge will consider when deciding custody. 3 However, a parent who committed domestic violence could get some form of custody or visitation if the judge decides it is in the “best interest of the child.” Under Iowa law, it is assumed that it is in the “best interest of the child” to have as much ongoing contact with both parents as possible, unless the child may be harmed. “Contact” means both physical and emotional contact. “Harm” includes both physical harm and significant emotional harm.4
If the judge is considering giving the abuser joint custody or unsupervised visitation, the judge must consider whether these arrangements would be a risk to the safety of your child, other children, or you.5
If the other parent has abused your child or if you believe that your child is not safe with the other parent for another reason, you can ask for supervised or restricted visitation. The judge may order it if s/he believes that it is in the child’s best interest. See Should I start a court case to ask for supervised visitation? for more information about the types of supervised visitation generally available.
1 Iowa Code § 598.41(1)(b)
2 Iowa Code § 598.41(3)(j)
3 Iowa Code § 598.41(2)(c)
4 Iowa Code § 598.1(1)
5 Iowa Code § 598.41(3)(i)
Can a parent who committed murder or a sex offense get visitation?
If a parent was convicted of first-degree murder of the child’s other parent, the murderer parent cannot get visitation with the child - unless the judge believes that visits would be in the child’s best interests. To make this decision, the judge must consider all of the following things:
- the child’s age and maturity level;
- if the child is developmentally mature enough to agree to the visits;
- if the child wants to visit the parent;
- the recommendation of the child’s custodian or legal guardian;
- the recommendation of the child counselor or a mental health professional who evaluated the child;
- the recommendation of the guardian ad litem for the child, if there is one; and
- any other information the judge thinks is relevant.1
If a parent was convicted of a sex offense against a child, the judge must consider the parent’s criminal history to decide if it is in the child’s best interest to visit with the parent. All of the other best interest factors will be considered as well. However, a parent who was convicted of a sex offense against a child cannot get visitation while s/he is incarcerated. The parent also cannot get visitation while s/he is on probation or parole until s/he completes any court-ordered treatment program.
Note: If there is a custody/visitation order in place, and then a parent is incarcerated for a sex offense against a child, this is considered a “substantial change in circumstances” that could be a reason to change (modify) the order.2
1 Iowa Code § 598.41B
2 Iowa Code § 598.41A
Can a grandparent or great-grandparent get visitation?
A grandparent or great-grandparent can only ask for visitation if:
- the child’s parent died; and
- the person seeking visitation is the parent or grandparent of the deceased parent.1
If the living parent does not agree to visitation, the judge will assume the parent’s decision is in the child’s best interest. However, evidence can be presented to the judge to change his/her mind. This is what’s known as a “rebuttable presumption.”2 The judge can go against the parent’s preference and give visitation to the grandparent or great-grandparent only if the judge believes all of the following are true:
- Having visits with the grandparent or great-grandparent is in the child’s best interest - see How will a judge decide if grandparent or great-grandparent visitation is in the child’s best interest?;
- The grandparent or great-grandparent had a “substantial relationship” with the child before starting the court case - for example:
- The child lived with the grandparent or great-grandparent for at least six months;
- The grandparent or great-grandparent supported the child financially for at least six months; or
- The child visited the grandparent or great-grandparent often, including occasionally staying overnight, for at least a year; and
- The parent opposing visits is not acting in the child’s best interest because either:
- The parent is unfit to make the decision; or
- The parent has “impaired judgment” so s/he can’t make a good decision, based on the fact that the parent:
- has abused, neglected, or been violent to the child;
- does not have strong feelings for the child;
- is unable or unwilling to put the child’s emotional and physical well-being first;
- has a substance abuse disorder; or
- has a mental illness; and
- The benefit to the child of visiting with the grandparent or great-grandparent greatly outweighs any effect the visits might have on the parent-child relationship.3
1 Iowa Code § 600C.1(1)
2 Iowa Code § 600C.1(2)
3 Iowa Code § 600C.1(3), (5)
How will a judge decide if grandparent or great-grandparent visitation is in the child’s best interest?
To decide whether visitation is in the child’s best interest, the judge will look at all of the following things:
- how the child’s relationship with his/her parents, siblings, and other relatives compare to the child’s relationship with the grandparent or great-grandparent asking for visits;
- how far the grandparent or great-grandparent lives from the child;
- the child’s and parent’s schedules and free time;
- the child’s age;
- the child’s wishes and concerns about visiting the grandparent or great-grandparent, if the judge interviewed the child about this;
- the child’s health and safety;
- the mental and physical health of all involved;
- if the grandparent or great-grandparent acted in a way that resulted in a legal determination (finding) that a child was abused or neglected;
- if the grandparent or great-grandparent was convicted of or pleaded guilty to:
- a criminal offense involving any child being abused or neglected; or
- a criminal offense where the victim of the crime was a member of the family or household involved in this case;
- the wishes and concerns of the child’s parent; and
- anything else that the judge considers to be relevant to the best interest of the child.1
1 Iowa Code § 600C.1(1), (2), (3), (4)
