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IN THE COURT OF APPEALS OF IOWA No. 8-255 / 07-1636 Filed June 25, 2008

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF JOSEPH RYAN McDONALD ED BALL JR., Petitioner-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Mahaska County, E. Richard Meadows Jr., Judge.

Ed Ball Jr. appeals from the trial court's decision appointing Rita McDonald as Joseph McDonald's guardian. AFFIRMED.

Jane M. White of Parrish, Kruidenier, Moss, Dunn, Boles & Gribble & Cook, L.L.P., Des Moines, for appellant. Steven Gardner of Kiple, Denefe, Beaver, Gardner & Zingg, L.L.P., Ottumwa, for appellee. Terri Buekelman, Pella, for the minor child.

Heard by Sackett, C.J., and Huitink and Mahan, JJ.

2 HUITINK, J. Ed Ball Jr. appeals from the trial court's decision appointing Rita McDonald as Joseph McDonald's guardian. We affirm. I. Background Facts and Proceedings Six-year-old Joseph McDonald's mother, Rhonda McDonald, died on April 30, 2007, prompting his father, Ed Ball Jr., and his maternal grandmother, Rita McDonald, to file separate petitions for appointment as Joseph's guardian. Although the trial court temporarily appointed Ed as Joseph's guardian, his subsequent incarceration resulted in Rita's appointment as Joseph's temporary guardian. The matter proceeded to trial on June 5, 2007. The trial court's resulting ruling provides: At this time, Ed has not demonstrated he is a qualified and suitable parent warranting the parental preference. "A parent who has taken an extended holiday from the responsibilities of parenthood may not take advantage of the parental preference for custody." In re Guardianship of Knell, 527 N.W.2d [778,] 782 [(Iowa 1995)], citing In re Guardianship of Stewart, 369 N.W.2d 820, 823 (Iowa 1985) (citations omitted.) Ed has taken that extended holiday. Denying a natural parent custody is not something the Court takes lightly. The Court looked closely for reliable evidence indicating Ed had become more than a casual friend to Joe--that he was becoming a responsible individual. The evidence was not to be found. The Court weighed Rita's and [Ed's] parenting strengths and considered the strong societal interest in preserving the natural parent-child relationship and concluded Rita has met her burden. Joe's long-range and immediate interests are best served by placing his custody with Rita. The trial court accordingly appointed Rita as Joseph's guardian and granted Ed liberal visitation privileges. On appeal, Ed claims:

3 THE TRIAL COURT ERRED IN DETERMINING THAT JOSEPH SHOULD BE PLACED IN THE GUARDIANSHIP OF RITA MCDONALD. A. The Trial Court failed to give adequate weight to the presumption that children are best served in the custody of their natural parents. B. The Trial Court erred in determining it was in Joseph's best interest to move to California rather than be with his natural father and family in Iowa. II. Standard of Review The parties agree the petitions for the appointment of a guardian for Joseph are properly tried in equity. Therefore, our review is de novo. 1 In re Guardianship of Knell, 537 N.W.2d 778, 780 (Iowa 1995). We give weight to the trial court's findings of fact, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g). III. Statutory Parental Preference and Best Interests Iowa Code section 633.559 (2007) sets forth the preferences for the appointment of a guardian for a minor child: The parents of a minor, or either of them, if qualified and suitable, shall be preferred over all others for appointment as guardian. Preference shall then be given to any person, if qualified and suitable, nominated as guardian for a minor child by a will executed by the parent having custody of a minor child, and any qualified and suitable person requested by a minor fourteen years of age or older, or by standby petition executed by a person having physical and legal custody of a minor. Subject to these preferences, the court shall appoint as guardian a qualified and suitable person who is willing to serve in that capacity.

1

Although we stated in In re Guardianship & Conservatorship of D.D.H., 538 N.W.2d 881, 883 (Iowa Ct. App. 1995), our standard of review for appointment of a guardian is for errors at law, our supreme court in In re Guardianship of Knell, 537 N.W.2d at 780, a later case, stated it is de novo.

4 Under this section, a strong presumption exists that a child's welfare is best served in the care and control of his or her natural parents. Zvorak v. Beireis, 519 N.W.2d 87, 88 (Iowa 1994). This presumption is essential to the maintenance of society, for without it, man would be denaturalized, the ties of family broken, the instincts of humanity stifled, and one of the strongest incentives to the propagation and continuance of the human race destroyed. Risting v. Sparboe, 179 Iowa 1133, 1136-39, 162 N.W. 592, 594 (1917). This statutory presumption in favor of natural parents is, however, rebuttable. In re Guardianship of Stodden, 569 N.W.2d 621, 623 (Iowa Ct. App. 1997). "The burden of proof rests with the non -parent to rebut the presumption favoring the parent by establishing the parent is not a suitable parent and the child's best interests require that he [or she] remain in the non-parent's care." Northland v. McNamara, 581 N.W.2d 210, 213 (Iowa Ct. App. 1998). In

determining the child's best interests, "we must take into account the strong societal interest in preserving the natural parent-child relationship." In re

Guardianship of Knell, 537 N.W.2d at 781. We must also consider the longrange best interests as well as the immediate best interests of the child. In re Guardianship of Sams, 256 N.W.2d 570, 573 (Iowa 1977). Our de novo review of the record discloses the following evidence: When Joseph was born in August 2000, Rhonda and Ed lived together sporadically in Oskaloosa but never married. In 2004 Ed moved to Florida, where he lived with Carmen Pacheco Ocasio, his current fianc

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