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IN THE COURT OF APPEALS OF IOWA No. 8-829 / 08-0060 Filed December 31, 2008

Upon the Petition of KURTIS E. GLENN, Petitioner-Appellee, And Concerning LINDSAY J. REYNOLDS, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson, Judge.

A mother appeals from a district court ruling placing physical care of her minor child with the child's father. AFFIRMED.

Steven E. Goodlow, Albia, for appellant. Victoria R. Siegel, Ottumwa, for appellee.

Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.

2 DOYLE, J. Lindsay Reynolds appeals from a district court ruling placing physical care of her minor child with the child's father, Kurtis Glenn. We affirm the judgment of the district court. I. Background Facts and Proceedings. Lindsay Reynolds and Kurtis Glenn are the parents of Kaitlynn, born in November 2006. The parties were never married. Kurtis filed a petition in

February 2007 seeking joint legal custody and physical care of Kaitlynn. The district court entered a temporary order in July 2007 placing Kaitlynn in the parties' joint legal custody and in Lindsay's physical care. Shortly

thereafter, the State filed a petition alleging Kaitlynn was a child in need of assistance (CINA) due to Lindsay's "history of psychiatric problems" and failure to adequately supervise Kaitlynn. The petition asserted that Lindsay left Kaitlynn alone in her apartment while she was engaged in a fight with another resident of her apartment complex. Lindsay was arrested and charged with disorderly

conduct as a result of that incident. An assessment investigating the incident resulted in a founded child abuse report based in part on allegations that Lindsay had left Kaitlynn alone on numerous other occasions. Kaitlynn was adjudicated a CINA in September 2007.1 The juvenile court found Lindsay "has a history of mental illness resulting in her inability to care for her child." The court granted concurrent jurisdiction to the district court for

litigation of "issues relating to the custody and placement" of Kaitlynn. A trial on

1

We note that Lindsay filed a notice of appeal from this ruling on September 20, 2007.

3 Kurtis's petition seeking joint legal custody and physical care of Kaitlynn was subsequently held in October 2007. At the time of the trial, Kurtis was twenty-four years old and employed fulltime at Pella Corporation where he works the night shift from 4:30 p.m. until 3:00 a.m. He is very close to his parents and lives near them in a two bedroom house with a room for Kaitlynn. His mother is available and willing to care for Kaitlynn while Kurtis works at night. Lindsay was twenty-four years old at the time of the trial and employed part-time as a waitress. She lives in an apartment, the exact address of which she refused to reveal during the CINA proceedings in order to "avoid harassment" from the police. She denied having any mental health issues at the trial on Kurtis's petition, stating she instead believes she is "under a lot of stress." She did admit, however, to being hospitalized "maybe twice for crying too much. At a bad time in my life. Years ago." Lindsay's other daughter from a prior relationship, MacKenzie,2 was placed in the guardianship of Lindsay's mother in prior CINA proceedings. Kurtis and Lindsay began dating in October 2005. They resided with one another from December 2005 until January 2006. Kurtis testified that he ended his relationship with Lindsay because she was "very emotional and she had ups and downs that were pretty erratic. She was very needy in her showing of

getting attention and small things . . . set her off." While she was pregnant with Kaitlynn, a "hysterical" Lindsay called Kurtis and threatened to commit suicide.
2

Lindsay's first child's name is spelled as both "Makenzie" and "McKenzie" in the district court record. However, it appears from Lindsay's brief that the correct s pelling is "MacKenzie." W e will therefore use that spelling in our opinion.

4 Kurtis testified that after Kaitlynn was born, Lindsay called him on several occasions because she was "upset" and "couldn't handle things." She reported at one point that she was "so tired that she is unable to care for the child." Kurtis filed his petition seeking joint legal custody and physical care of Kaitlynn soon after she was born. Following the trial, the district court entered an order placing Kaitlynn in the parties' joint legal custody and in Kurtis's physical care. Lindsay appeals, claiming the court erred in placing Kaitlynn in Kurtis's physical care. II. Scope and Standards of Review. Our review of the district court's order regarding custody and visitation in this equity matter is de novo. Iowa R. App. P. 6.4; Callender v. Skiles, 623 N.W.2d 852, 854 (Iowa 2001). Although not bound by the court's fact findings, we give them weight, especially when considering the credibility of witnesses. Iowa R. App. 6.14(6)(g). III. Discussion. "When considering the issue of physical care, the child's best interest is the overriding consideration." In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). We are guided by the factors set forth in Iowa Code section

598.41(3) (2007) as well as those identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). See Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct. App. 1994) (noting these criteria apply regardless of par ents' marital status). Among the factors to be considered are whether each parent would be a suitable custodian for the child, whether both parents have actively cared for the

5 child before and since the separation, the nature of each proposed environment, and the effect on the child of continuing or disrupting an existing custodial status. See Iowa Code

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