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When married parents separate or get divorced, either one or both parents can get custody of the child.1
If the child’s parents are not married, and the father has not signed an acknowledgment of paternity, then the mother has sole custody of the child unless a judge has ordered something else. However, after legal fatherhood (paternity) is established, the father has an equal right to file for custody or visitation.2
1 IA ST § 598.41
2 IA ST § 600B.40(1)
Can a parent who committed domestic violence get custody or visitation?
A parent who committed domestic violence could still get custody or visitation if the judge decides this is in the “best interest of the child.” Iowa law says the “best interest of the child” means that the child has as much ongoing physical and emotional contact with both parents as possible unless direct physical or significant emotional harm to the child may result from this contact.1
The judge must consider if giving the abuser joint custody or visitation without supervision or restrictions would be a risk to the safety of the child, other children, or you.2 The judge must also consider if there is a history of domestic abuse as defined by the law against you, the child, or any other family or household member.3
When the judge is deciding if there is a history of domestic abuse, the judge will look at whether or not:
- anyone filed for an order of protection;
- there is or was an order of protection against the abuser;
- the abuser violated an order of protection;
- the police responded to domestic abuse;
- the abuser was arrested for domestic abuse; or
- the abuser was convicted of domestic abuse assault.4
If the judge believes there is a history of domestic abuse, the 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.5 If the judge is thinking of giving joint custody when both parents don’t agree to it, a history of domestic abuse is the most important factor to consider. It outweighs all the other factors listed in How will the judge make a decision about custody?6
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 IA ST § 598.1(1)
2 IA ST § 598.41(3)(i)
3 IA ST §§ 598.41(3)(j); 236.2(2), (4), (5)
4 IA ST §§ 598.41(3)(j)
5 IA ST § 598.41(1)(b)
6 IA ST § 598.41(2)(c)
Can a parent who committed murder or a sex offense get visitation?
If a parent murdered the child’s other parent:
If a parent was convicted of first-degree murder of the child’s other parent, the murderer parent cannot get visitation with the child. However, the judge can make an exception if the judge decides it would be in the child’s best interest to visit the murderer parent, taking into account:
- the child’s age and maturity level;
- if the child is developmentally mature enough to agree to the visitation and the child wants to visit the parent;
- the recommendation of the child’s custodian or legal guardian;
- the recommendation of a child counselor or 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 committed a sex offense against a child:
If a parent was convicted of a sex offense against a child, the judge must consider this, in addition to all of the other best interest factors, to decide if it is in the child’s best interest to visit with the parent. 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.
If 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) a custody or visitation order.2
1 IA ST § 598.41B
2 IA ST § 598.41A
Can a grandparent or great-grandparent get visitation?
A grandparent or great-grandparent can ask for visitation with the child if the child’s parent died and the deceased parent was the child of the grandparent or the grandchild of the great-grandparent asking for visits.1
However, the judge must consider if the child’s other parent does not want the child to visit with the grandparent or great-grandparent. The judge will assume the parent’s decision about this is in the child’s best interest unless the parent is unfit or the parent’s judgment is impaired.2
The judge can 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 frequently, 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 can’t make a good decision (has impaired judgment), and the benefit to the child of visiting with the grandparent or great-grandparent greatly outweighs any effect on the parent-child relationship. Note: The parent may not be able to make a good decision about this because the parent:
- has abused, neglected, or been violent to the child;
- is indifferent to or lacks feeling 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.3
1 IA ST § 600C.1(1)
2 IA ST § 600C.1(2), (3)(c)
3 IA ST § 600C.1(3)
How will a judge decide if grandparent or great-grandparent visitation is in the child’s best interest?
To decide if visiting with the grandparent or great-grandparent is in the child’s best interest, the judge will look at the following things:
- how the child’s relationships 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 in the best interest of the child.1
1 IA ST § 600C.1(4)
