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IN THE COURT OF APPEALS OF IOWA No. 1-906 / 11-1042 Filed December 21, 2011

IN RE THE MARRIAGE OF NASREDIN DALIL AND ASMA ALI Upon the Petition of NASREDIN DALIL, Petitioner-Appellee/Cross-Appellant, And Concerning ASMA ALI, Respondent-Appellant/Cross-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Fayette County, Bauerkamper, Judge.

John

Asma Ali appeals and Nasredin Dalil cross-appeals the decree issued by the district court dissolving their marriage. MODIFIED IN PART. AFFIRMED IN PART AND

Joseph G. Bertroche, Jr. of Bertroche Law Office and Ronald L. Ricklefs, Cedar Rapids, for appellant. Daniel L. Bray and David M. Cox of Bray & Klockau, P.L.C., Iowa City, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

2 DOYLE, J. Asma Ali appeals and Nasredin Dalil cross-appeals the decree issued by the district court dissolving their marriage. Upon our de novo review, we affirm in part and modify in part. I. Background Facts and Proceedings. Asma and Nasredin were both born and educated in the Republic of Sudan. Nasredin obtained a medical degree in the Sudan in 1995, and he

practiced medicine there until 1998. Asma obtained a degree in Arabic and Islamic Studies, and she worked as a teacher in the Sudan. In 1998, Nasredin immigrated to the United States with the goal of obtaining his medical license to practice medicine in the U.S. Nasredin moved to North Carolina and began preparing to take the United States Medical License Exam. Asma remained in the Sudan. On May 21, 2000, the parties were

married. Asma immigrated to the U.S. in April 2001, moving to North Carolina with Nasredin. In July 2003, Nasredin moved from North Carolina to California; Asma joined him four months later. In August 2005, the parties' son, Hashim, was born. Thereafter, Nasredin obtained his U.S. medical license. In 2006, Nasredin was accepted into a

residency program at a hospital in Waterloo, Iowa, and he and the family then moved to Waterloo. The couple's marriage has been fraught with discord. Both parties during the marriage, at different times, separated, only to reconcile. In May 2008, Asma demanded a divorce from Nasredin and moved with their son to Iowa City. The couple reconciled, and Nasredin moved to Iowa City

3 with Asma and Hashim in November 2008. However, the couple again

separated in early 2009. Nasredin became Hashim's primary caregiver while in Sudan and for a short amount of time after returning to the U.S. In September 2009, Nasredin began working as a family physician. He moved to Oelwein, and Asma remained in Iowa City. Nasredin left Hashim in Asma's care while he began transitioning into practice and furnishing his home, telling Asma to "treat [Hashim] right, and I'll come visit." Nasredin later made a room for Asma in his residence. He gave Asma a key to his home and

permission to come and go as she pleased. Asma and Hashim then regularly stayed at Nasredin's home. In January 2010, Hashim began living in Nasredin's home full-time, and Nasredin and Asma enrolled him in preschool in Oelwein. Asma began taking classes at the University of Iowa. By April 2010, the couple's relationship had once again deteriorated. Setting forth descriptions of specific instances of the couple's discord would serve no reasonable purpose here. On May 12, 2010, Nasredin filed his petition for dissolution of marriage, seeking sole legal custody of Hashim. Asma answered and requested joint legal custody. A temporary order was entered on July 21, 2010, awarding the parties joint legal custody. Nasredin was given primary physical care1 of Hashim, with Asma having visitation every other weekend. In October 2010, Hashim's preschool became concerned with Asma's behavior. The preschool had initially allowed Asma to call Hashim during his

"Primary physical care" is not defined in Iowa Code chapter 598; nevertheless, we recognize the term is commonly used by parties, their counsel, and the courts.

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4 scheduled childcare at the school, but the staff began noticing changes in Hashim's behavior after speaking to Asma, including emotional and angry outbursts by the child. The preschool's staff ended a phone call between Asma and Hashim on October 10, 2010, after Hashim had begun crying while on the phone with Asma, and asked Asma to call back another time. Asma then made an emergency call to police, questioning Hashim's safety. Hashim was found safe and sound at the preschool, and the school staff was asked to call Asma back, although it had already explained the situation to Asma. A few days later, Asma called the preschool to speak with Hashim, and she made several accusations against the staff, asserting they were lying and trying to take Hashim from her. Thereafter, the preschool sent a letter to Asma stating it would no longer allow Hashim to take her calls while at the school. On October 12, 2010, it was reported to the Iowa Department of Human Services (Department) that Nasredin was sexually and physically abusing Hashim, and a child abuse assessment was initiated. Nasredin denied the

allegations. The Department's worker spoke with Asma, who was very tearful and emotional during the conversation. Asma told the worker Nasredin had

abused her in the past. Asma stated Hashim had been scratched by a boy at the preschool, and the school was lying about it. Nasredin sexually abuse Hashim in the past. The worker also talked to Hashim's teacher. The teacher stated that She stated she had observed

Hashim displayed violent behaviors at school and the behaviors seemed to be worse after coming back from Asma's home. The teacher stated Asma

continued to call the preschool for Hashim. The teacher also reported that Asma

5 often returned Hashim to school late when her visitation ended. The Department determined the child abuse report against Nasredin was unfounded, and it recommended Asma have a mental health evaluation and follow with recommendations for services. Two days after the Department's worker spoke with Hashim's teacher, Asma took Hashim to the University of Iowa Hospitals and Clinics. She reported Hashim had told her a boy had sexually abused him at the preschool. She also reported that Nasredin had locked Hashim in his room and had left him at home alone. Another child abuse assessment was initiated, and a Department worker met with Hashim and Asma. Hashim denied being abused to the worker. On November 8, 2010, Asma did not return Hashim to Oelwein following her weekend visitation. The Department's worker contacted Asma, and she

advised him she was trying to enroll Hashim in school in Iowa City. The worker stated Asma "talked constantly and [her] areas of concern were very disjoined." Among other statements, Asma told the worker: "I do not have anything to live for without him." The worker believed Asma's statement to be a suicide ideation. Based upon Asma's statement and her "acting irrational by trying to enroll her son into school when the father has physical custody," the worker contacted law enforcement officials to conduct a safety check. After the safety check, Hashim was removed from Asma's care due to the officer's concerns for the child's safety, and Hashim was returned to Nasredin. Nasredin then filed an application for a finding of contempt, based upon Asma's keeping Hashim, and an application to modify the temporary custody order.

6 On November 15, 2010, the Oelwein Community Schools' superintendent banned Asma from school property, which included the preschool, "due to a series of on-going disruptions" by Asma. The superintendent's letter to Asma further explained: Your on-going attempts to by-pass the visitation provisions of your custody agreement and your frequent calling of Hashim during and after school continue to be disruptive. The school and [care center] will no longer be put in the middle of custody and visitation issues involving your son. The school required all communication and contact with Hashim by Asma be done at another location, or it would contact police for trespass. The Department's worker again spoke with Asma, this time with an Arabic interpreter because "Asma has been difficult to understand." Asma accused

Nasredin of sexually abusing Hashim, as well as the preschool of abusing the child. A forensic interview was conducted with Hashim, and Hashim provided limited information and did not discuss any situations of abuse during the interview. The Department determined the child abuse report was unfounded. In January 2011, the district court entered its order on Nasredin's application for a finding of contempt and to modify the temporary custody order. The court found that while Asma may or may not have had a legitimate reason to be concerned about Hashim, her action of failing to return Hashim was a willful and wanton disregard for the court's order and therefore contempt.

Nevertheless, the court declined to sentence Asma on its finding of contempt, so long as she followed the strict terms and conditions of the terms of visitation set forth in the court's order, especially that Asma return Hashim to school on

7 Mondays following her visitation in a timely fashion. The court denied Nasredin's request to modify the temporary order, explaining: While the court is concerned that one or both parties may be using the [Department] in order to gain a litigation advantage in this matter, the court finds no reason to modify the terms and conditions of visitation at this point. [Nasredin] points out that the child acts inappropriately following interaction with his mother. Such behavior is not uncommon in dissolution of marriage situations. Trial was held in March 2011. Nasredin admitted that from the time

Hashim born until Nasredin finished his residency in 2009, Asma was generally the child's primary caregiver. However, he stated he had concerns about Asma's emotional instability and irrational behavior, asserting Asma had anger issues and suffered delusions during their marriage. Asma testified about communication issues she had had during the case. She testified that she had no suicide ideations and the Department's w orker taking her statement as such was a misunderstanding due to communication problems. She denied having any delusions or mental health issues. She

continued to assert Nasredin had been unfaithful and had abused her in the past. Several of Nasredin's witnesses testified to their concerns of Asma's emotional and mental instability, including the Department's worker who spoke with Asma during the assessments. Asma's witnesses testified concerning her ability to safely parent Hashim. On May 9, 2011, the district court entered its decree dissolving the parties' marriage.2 The court found Asma had "displayed repeated incidents of

Although there was an issue at trial as to whether the parties had divorced under Islamic Sharia Law prior to the filing of the dissolution petition, the district court's

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8 uncontrolled anger, irrational thinking, paranoid charges, and instability. Her

behavior has been disruptive and counterproductive to the child's emotional development." The court further found that "[e]ffective communication between the parents is non-existent. Their difference of opinion on essential child rearing issues is great and [Asma's] views are uncompromising." The court then awarded Nasredin sole legal custody of Hashim, and it ordered Asma to pay child support. The court granted Asma visitation on every other weekend, requiring Asma to pick up Hashim on Fridays to begin her visitation and Nasredin to pick-up Hashim on Sunday nights to end the visitation. The court granted Asma five consecutive weeks' visitation in the summer, with no visitation during that time with Nasredin. The court also granted Asma visitation with the child during four of the major Muslim holidays. The court required each party to get the other's permission and signature before taking Hashim out of the country. Additionally, the court awarded Asma rehabilitative spousal support in the amount of $1500 per month for three years. The court required each party to pay his or her own remaining trial attorney fees. Asma now appeals, and Nasredin cross-appeals. II. Scope and Standards of Review. We review custody decrees de novo. Iowa R. App. P. 6.907; In re

Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). We do so with the realization that the district court possesses the advantage of listening to and

ruling finding it was not appropriate to recognize the purported divorce is not at issue on this appeal.

9 observing the parties and witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Consequently, we credit the factual findings of the district

court, especially as to the demeanor and believability of witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g); In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Our overriding concern is the best interests of the child. Iowa R. App. P. 6.904(3)(o). III. Discussion. On appeal, Asma asserts the district court erred in failing to award the parties joint legal custody and her primary physical care of Hashim. Asma also contends the court should have awarded her a greater amount of spousal support for a longer duration, and the court abused its discretion in not awarding her attorney fees. Nasredin on cross-appeal contends the district court erred in requiring him to obtain Asma's permission and signature to travel internationally with Hashim, in awarding Asma visitation on all of the Muslim religious holidays, in not awarding him weekend visitation during Asma's five -week summer visitation with Hashim, and in other respects. We address their arguments in turn. A. Custody. 1. Legal Custody. "The legislature and judiciary of this State have adopted a strong policy in favor of joint custody from which courts should deviate only under the most compelling circumstances." In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). "Joint custody is preferred because, properly tailored to the parties' circumstances, joint custodial arrangements will often go a long way

10 toward encouraging both parents to share the rights, responsibilities, and frequently joyful and meaningful experiences of raising their children." Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983). In re

If either parent

requests joint custody the court must order joint custody unless it cites clear and convincing evidence, pursuant to the factors in Iowa Code section 598.41(3) (2009), that joint custody is unreasonable and not in the best interests of the child to the extent the legal custodial relationship between the child and a parent should be severed. Iowa Code

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