Marriage of Rykhoek, In re, 93-949

• Citation: 525 N.W.2d 1
• Decision Date: 16 September 1994
• Docket Number: No. 93-949,93-949
• Parties: In re the MARRIAGE OF Carrie RYKHOEK and Irvin Rykhoek, Upon the Petition of Carrie Genest f/k/a Carrie Rykhoek, Appellant, And Concerning Irvin Ryhoek, Appellee.
• Court: Court of Appeals of Iowa

Page 1

525 N.W.2d 1

In re the MARRIAGE OF Carrie RYKHOEK and Irvin Rykhoek Upon the Petition of Carrie Genest f/k/a Carrie Rykhoek, Appellant And Concerning Irvin Ryhoek, Appellee.

No. 93-949.

Court of Appeals of Iowa.

Sept. 16, 1994.

Eric Borseth of Borseth & Genest, Pleasant Hill, for appellant.

Chris Shepperd of Kreykes & Shepperd Law Office, Pella, for appellee.

Considered by DONIELSON, C.J., and SACKETT and HUITINK, JJ.

HUITINK, Judge.

Carrie and Irvin Rykhoek were previously married and were divorced in February 1990. They were awarded joint legal custody of the minor children: Mitchell, born December 20, 1984; Carissa, born October 28, 1986; and Tyler, born September 4, 1987. Carrie was awarded primary physical care, and Irvin was given visitation rights.

After the dissolution, Carrie lived in a trailer home on her parents' land near Pella. Carrie's mother took care of the children while Carrie was at work. Eventually, Carrie and her mother had a falling out and quit communicating with each other. In June 1991 Carrie moved with the children to Des Moines, where she had a job as a word processor. Carrie remarried in June 1992 and is now known as Carrie Genest.

After Carrie moved to Des Moines, she and the children had little contact with her parents. Irvin still lives in the Pella area and would have the children there during visitation. Carrie's parents contacted Irvin and sought to see the children during Irvin's visitation time. Irvin allowed the maternal grandparents to visit the children.

When she became aware of her parents' contact with the children, Carrie asked Irvin to stop this practice, or to at least notify her in advance. In an affidavit she stated she was concerned about the children's contact with her parents because of the negative statements her mother made about her, which she felt would undermine her authority with the children. Irvin refused to comply with her wishes on this matter.

Carrie filed a petition for modification of the dissolution decree. She sought to modify the decree to provide that Irvin may not give the children to any member of her family, any person picking up the children for her family, or any other person unless the person seeking visitation had contacted her and received her permission in writing to have the children for visitation. She also requested that Irvin not be allowed to visit any member of her family while the children are in his custody, have any member of her family at his home while the children are in his custody, or allow her family to have unauthorized contact with the children.

Carrie filed a motion for summary judgment in which she alleged she should be allowed to determine who could visit the children. Irvin also filed a motion for summary judgment, claiming Carrie has not shown a sufficient change in circumstances to modify the decree.

The district court granted Irvin's motion for summary judgment and denied Carrie's motion. The court found there were no undisputed material facts in this case. The court determined there was a legal question as to whether Carrie, as the primary physical caretaker, could dictate to Irvin, as a joint custodian, who he can allow the children to visit. The court found Carrie's position was not supported by legal authority. The court also determined Carrie had not sufficiently shown a modification of the visitation provision of the decree would be in the children's best interests. The court dismissed Carrie's application for modification. Carrie appealed.

We review the district court's ruling granting summary judgment for errors at law. Iowa R.App. P. 4. Summary judgment is proper only when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c); Brown v. Monticello State Bank, 360 N.W.2d 81, 83-84 (Iowa 1984). On review we determine whether a genuine issue of fact exists and whether the law was applied correctly. Id. at 84.

To justify a change in visitation, a party must show there has been a change of circumstances since the dissolution decree. In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa App.1988). The burden in a modification of visitation rights is different than the burden in a child custody case. Id. Generally, a much less extensive change in circumstances need be shown in visitation rights cases. Id.

We first consider the parties' rights as joint legal custodians and Carrie's rights as the children's primary physical caretaker. In pertinent part, Iowa Code section 598.41(5) provides:

If one joint custodial parent is awarded physical care, the court shall hold that parent responsible for providing for the best interest of the child. However, physical care given to one parent does not affect the other parent's rights and responsibilities as a legal custodian of the child. Rights and responsibilities as legal custodian of the child include, but are not limited to, equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction.

Iowa Code § 598.41(5) (1993).

Thus, joint custody gives both parents rights and responsibilities. In re Marriage of Westcott, 471 N.W.2d 73, 75 (Iowa App.1991). Even though a parent does not receive primary physical care of his or her child, that parent continues to be the child's parent and retain all of those parental rights not granted exclusively to others in the decree or otherwise surrendered by the parent. Leaf v. Iowa Methodist Medical Ctr., 460 N.W.2d 892, 894 (Iowa App.1990).

The parent who is granted primary physical care has the right and responsibility to maintain the principal home of the minor child and provide for the routine care of the child. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). The parent having physical care must, as between the parties, have the final say concerning where the children's home will be. In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1983).

Additionally, in the recent cases of In re Petition of Ash, 507 N.W.2d 400, 402 (Iowa 1993) and Lihs v. Lihs, 504 N.W.2d 890, 892 (Iowa 1993), the supreme court upheld the right of a custodial parent to exercise a common-law veto power over visitation between the child and all other third parties, except the parent who is granted visitation rights. We note that in Lihs the mother is described as the custodial parent, but the facts of the case show the mother was the primary physical caretaker. ¹ 504 N.W.2d at 891. Lihs involved a request by half-siblings for court-ordered visitation rights. Id. Ash involved a request by the mother's former boyfriend, who was not the biological father, for court-ordered visitation rights. 507 N.W.2d at 401.

Both of these supreme court cases rely upon Olds v. Olds, 356 N.W.2d 571 (Iowa 1984). Olds involved a request by grandparents for court-ordered visitation. 356 N.W.2d at 572. Section 598.35, the Iowa grandparent visitation statute, provides for such court-ordered visitation. Iowa Code § 598.35 (1993). However, this statute does not apply when the grandparents seeking court-ordered visitation are the parents of the custodial parent. Olds, 356 N.W.2d at 574; In re Marriage of Woodley, 474 N.W.2d 815, 816 (Iowa App.1991). Section 598.35 applies only to those situations specified in the statute. Lihs, 504 N.W.2d at 892. Thus, where section 598.35 does not apply, the common-law rule applies. In re Marriage of Freel, 448 N.W.2d 26, 27-28 (Iowa 1989).

In Olds, the court stated a custodial parent's veto power over visitation with people other than the noncustodial parent, and as provided for in section 598.35, is granted on the ground that judicial enforcement of visitation would divide and thereby hamper proper parental authority, force the child into the midst of a conflict of authority and ill feelings between parent and grandparent, and coerce what should remain a moral rather than a legal obligation. 356 N.W.2d at 573. The common-law rule against coercing grandparent visitation over parental objections demonstrates a respect for family privacy and parental autonomy. Id. at 574.

We determine Olds dealt with a slightly different issue than the one presented to us. In Olds, the grandparents sought court-ordered visitation rights. Id. at 572. In the present case, Carrie's parents are not a party to the suit, and they are not seeking specific visitation rights of their own. Under the cases discussed above, Carrie's parents would not be entitled to court-ordered visitation under section 598.35 because their child is the physical caretaker of the children. Thus, legally Carrie could veto a request by her parents for visitation with the children. However, Carrie's veto power does not extend to Irvin, who is a joint custodial parent and who was granted visitation privileges under the dissolution decree. The question then in this case is whether Carrie's common-law veto can be used to dictate to Irvin who the children might see while they are in his care during visitation.

Generally, we have considered liberal visitation rights to be in a child's best interest. In re Marriage of Stepp, 485 N.W.2d 846, 850 (Iowa App.1992). Section 598.41(1) provides:

The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent....

Iowa Code § 598.41(1) (1993). Thus, we will not restrict a parent's visitation unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact. In re Marriage of Gillilland...