Custody

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial.

However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody.

You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

• If you are a married parent, you would generally include the custody petition within the divorce process.
• If you are an unmarried parent, you would generally file using the Petition for Custody (Parents Not Married) forms. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

You can find links to the divorce and custody petition forms on our IA Download Court Forms page.

2. Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

Iowa law requires parents with children to attend a “Children in the Middle” parenting class before the judge can issue a final custody and visitation order or divorce decree. See What is a “Children in the Middle” class? for more information.  

3. Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

• communications between the parents can only be in writing;
• all communications can only be related to the child; and
• a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child to avoid future conflicts.

4. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to the judge’s error.

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

To find out more about how the process works in your area, please contact a lawyer. Please visit our IA Finding a Lawyer page to find legal help in your area.​ You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.

The judge will often favor giving parents joint legal custody. Under Iowa law, as long as it’s reasonable and in the child’s best interest, the judge must give a custody and visitation order that:

• gives your child as much ongoing physical and emotional contact with both parents as possible; and
• will encourage the parents to share the rights and responsibilities of raising the child;

unless having this kind of contact with the other parent is likely to cause direct physical harm or significant emotional harm to the child, other children, or you^.1

If the judge does not give joint legal custody, the judge must specifically explain why it is unreasonable and not in the best interest of the child so much so that it justifies ending (severing) the legal custodial relationship between the child and parent.²

If the judge gives joint legal custody, the judge can also give joint physical care if either parent asks for it. If the judge does not grant this, the judge must specifically explain why joint physical care. is unreasonable and not in the best interest of the child. Before deciding, the judge can require the parents to submit proposed parenting plans.³ See What is a parenting plan? for more information.

¹ IA ST § 598.41(1)(a)
² IA ST § 598.41(2)(b)
³ IA ST § 598.41(5)(a), (5)(b)

There are exceptions to the “home state rule.” For example, it may be possible to file for custody in Iowa even if it is not the child’s home state because:

1. the child is present in Iowa and either:
   
   • the child has been abandoned; or
   • it is necessary in an emergency situation to protect the child because the child, a sibling, or parent of the child, is subjected to or threatened with mistreatment or abuse;¹ or
2. the judge determines that:
   
   • the child and his/her parent have “significant connections” in the state; and
   • there is substantial evidence in the state related to the child’s care, protection, training, and personal relationship.²

This can be very complicated and there are additional exceptions that could apply. Please talk to a lawyer in Iowa and in the state where your child was previously living to figure out where to file. To find a lawyer or legal aid program in your area, please visit the IA Finding a Lawyer page or you can reach out to the Legal Resource Center for Violence Against Women for information if you are a victim of abuse.

¹ IA ST § 598B.204(1)
² IA ST § 598B.201(1)(b)

If you win your custody or visitation case, the judge can order the abuser to pay your attorney’s fees. The judge can also order the abuser to pay your attorney’s fees if you win a case to change (modify) a paternity, custody, or visitation order.¹

¹ IA ST § 600B.26

If you no longer want to continue with your custody and visitation case, you can file a motion asking the judge to dismiss it. However, if the other parent has already come to court or filed legal papers in the case, both you and the other parent must sign the motion for dismissal.¹

¹ IA ST § 598.3