In Iowa, if two parents exercise shared physical care (aka 50/50 in common parlance), the required child support order(s) end up being way less because they are off-setting. For the parent who doesn’t really care as much about being a shared caretaker, but who more cares about not getting gouged in child support, he or she will often demand the “shared care” label be used in a settlement agreement as a means of trying to win the benefit of the child support breaks. Faced with the threat of a demand for shared care, in order to avoid the potential loss of primary physical care terms at trial (not to mention the legal fees and year of delay), some parents will agree to the LABEL of shared care in a settlement agreement, but then, in the DETAILS, describe it as akin to a situation of primary care/visitation. That way, the one parent saves a few bucks, and the other parent gets to capture the most time, and everyone is happy. No one cares about the labels.
But what happens if someone wants to change something in the future? Who has the burden of proof? And does that person have to prove a change from the label of shared care, or a change from the practice of primary care/visitation? Is the Court going to honor the label of “shared” care, and give that the deferential weight of an original decree? Or, is the Court going to honor the details of the agreement, and examine what the parties have been doing since their seemingly perfect settlement agreement? You might think “who cares, just tell the judge the new facts and let him/her decide”, but the truth is that it is not so simple. You can’t just request a modification of your custody order because you want to, or because you think things would be better if it were changed in some way(s). You instead have to prove there has been a “substantial and material change in circumstances not within the contemplation of the district court at the time of its original decree” which is “more or less permanent” and which “affects the child’s best interests” AND you have to prove that the requested change ministers to the child’s needs in a fashion more superior than the current arrangement, or that you’re the essentially the superior parent. So, it matters greatly whether the court is going to enforce the label or enforce the details; not meeting a burden of proof can be a case-crusher. (By the way, you might also get ordered to pay the other party’s attorney fees if you lose on burden of proof, or on the merits). (By contrast, it should be noted for our readers that if you only want to modify just visitation, that’s a lower standard of proof: material change in circumstances plus the change is in the child’s best interests (that’s wayyyyyy easier to prove).
We may finally have some clarity on what counts the most. In the case of Spaulding v. Glenn, No. 20-0642, the Iowa Court of Appeals enforced the details, not the labels. In Spaulding, mom (Spaulding) and dad (Glenn) had a stipulated divorce in 2015. They agreed to the “shared care” label, but detailed their settlement such that mom had visitation and dad was the primary parent. After having parented as though they were following a primary care/visitation schedule (not a 50/50 one), mom started to want more than just the detailed visitation set forth in the settlement; she wanted something more like half the time with the kids–like the label said. Dad’s position, on the other hand, was that 50/50 was in name only, and that in practice, mom only ever had “visitation”, and as such, she had the heavy burden of proving there was a substantial and material change in circumstances which she failed to do.
The district court agreed with mom and ruled that since the parties agreed to the label of shared care, mom only needed to meet the lesser burden of proof: material change in circumstances, to modify the visitation schedule to something that was more equal, like 50/50. Since she met the lesser burden of proof of material change and best interests, the judge changed the visitation. The dad appealed. Dad argued that the district court was wrong to focus on the label because it illegally shrunk mom’s burden of proof. He argued that mom really should have to meet the higher standard of substantial and material change of circumstances and that she had failed to meet that burden.
The Court of Appeals agreed with dad and reversed the district court judge’s ruling. The Court of Appeals held that even though the parties used the term “shared care” as a label, they defined that term, to them, as meaning something more akin to a primary care/visitation schedule, and therefore, since mom was the one seeking to change things to REAL shared care, ie 50/50, she had to come to court and satisfy the more stringent burden of proof. The Court determined that the mom’s claimed changes of: 1) she lived only 30 mins away now, 2) dad never gave her extra time, and 3) dad didn’t share some info about the children’s activities with her, were not sufficient to meet the burden of proof. As some added dicta, the Court noted that even if the changes mom raised were significant, nonetheless, shared care was not a good option because of mom’s own testimony that the parties didn’t get along or communicate well. As the Court wisely recognized at page eleven of its opinion, “…establishing a shared-care schedule is unlikely to alleviate conflict between the parents. Rather it will take more concentrated cooperation, which appears out of reach for Kristin and Kurtis.”
LESSON–substance over form. Don’t be afraid of labels; actions speak louder than words in court. If you need a “creative” settlement, make sure to consult with your favorite custody lawyer. Don’t get stuck with what the Spaulding/Glenns had which, as the district court called it, a “hot mess.” Bad lawyering will get you bad results. Good, strategic lawyering can save you years down the road.
Jessica Zupp is an attorney in Denison, Iowa where she owns Zupp and Zupp Law Firm, P.C. with her twin sister, Jennifer. She specializes in Criminal Defense and Divorce and Family Law.