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IN THE COURT OF APPEALS OF IOWA No. 1-208 / 10-1078 Filed August 10, 2011

Upon the Petition of TERRY COOLEY, Petitioner-Appellant/Cross-Appellee, And Concerning JESSICA STEEL, Respondent-Appellee/Cross-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Dallas County, Darrell Goodhue, Judge.

Terry Cooley appeals from the district court order granting physical care of his daughter to her mother, Jessica Steel. AFFIRMED.

Jennie Lynn Wilson of Wilson Law Firm, Perry, for appellant. Michelle Rae Mackel-Wiederanders of Iowa Legal Aid, Des Moines, for appellee.

Considered by Eisenhauer, P.J., and Potterfield and Tabor, JJ.

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EISENHAUER, P.J. Terry Cooley appeals from the district court order granting physical care of his daughter to her mother, Jessica Steel. He contends the trial court erred in limiting the number of witnesses and in determining the outcome before the close of trial. Terry also contends the child's best interests dictate he should be

granted physical care. On cross-appeal, Jessica contends the court should not have awarded joint custody to the parties. I. Background Facts and Proceedings. Terry and Jessica have never been married. They are the parents of Sophie, born in January 2009. Terry has two daughters from prior relationships. relationship. Terry and Jessica dated from the spring of 2007 and lived together from the fall of 2007 until May 12, 2009, when Terry was arrested for domestic abuse following an altercation between the parties. As a result of that incident, Terry pled guilty to domestic abuse assault, received a deferred judgment, and has since been discharged from probation. He completed a batterer's education Jessica has a son from another

program. A protective order remains in effect between the parties. On June 15, 2009, Terry filed a petition to establish paternity, custody, child support, and visitation. He requested physical care of Sophie. In response, Jessica sought legal custody and physical care of the child. Trial was held on April 21 and 22, 2010. The trial court informed both parties they would be limited to five witnesses each, unless they could demonstrate the subject matter of their

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testimony was not cumulative. informed him,

At the close of Terry's evidence, the court

[S]o far I've seen none of the basic criteria that would justify giving you primary custody of this child. As far as I'm concerned, the rest of this case is about visitation, communication, and support. That doesn't mean you can't provide whatever further information you think is appropriate, but I'm sure that your counsel can tell you that one of the major things is who has been the primary caretaker of the child. Another major issue is the fact that you have not provided any financial support. No. 3, the element of abuse is in the background. There is none of the factors that are turning in your favor as far the evidence that I've received. I'm just putting you on notice that that's the way the record is at this point. At the close of trial, the court ruled from the bench, awarding the parties joint legal custody and placing physical care with Jessica. The court cited

Jessica's role as primary caretaker, Terry's initial lack of interest in the child, Terry's decision to evict Jessica and the child when the child was only four months of age, and the parties' instability as factors in its determination of the issues. The court later entered a written order, memorializing its ruling. II. Scope and Standard of Review. In this proceeding in equity, we review the trial court's decision de novo. Iowa R. App. P. 6.907. We give weight to, but are not bound by, the trial court's findings of fact. 6.904(3)(g). Iowa R. App. P.

We give great weight to the trial court's express and implied

credibility findings. Id. III. Custody and Physical Care. Terry contends the court erred in

granting Jessica physical care of Sophie, and Jessica contends the court erred in awarding joint custody of Sophie to the parties. intertwined, we address them together. Because these issues are

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Terry seeks an award of physical care, arguing Jessica did not allow him the opportunity to care for the child. He also alleges he is the more suitable custodian as shown by his stability. Jessica argues the court was correct to award her physical care and she should be made sole legal custodian, because there is a history of domestic abuse. Terry claims the presumption against joint legal custody because of domestic abuse had been rebutted. At the outset, we address Terry's concerns with the court's procedures at trial. First, we note the district court has the power to exclude relevant evidence where its probative value is substantially outweighed by "considerations of undue delay, waste of time, or needless presentation of cumulative evidence." See Iowa Rule of Evid. 5.403. If Terry had shown he had additional witnesses to present whose testimony was not cumulative, those witnesses would have been allowed. Terry made no such showing. The district court was within its

discretion to limit the testimony accordingly. In re Marriage of Ihle, 577 N.W.2d 64, 67 (Iowa Ct. App. 1998) ("It is generally recognized that matters relating to the course and conduct of a trial, not regulated by statute or rule, are within the discretion of the trial judge."). Terry also complains the district court determined the outcome of the case at the close of his evidence. While we disagree, we note our review on appeal is de novo. Therefore, any error by the trial court in predetermining the outcome of this case is alleviated by our fresh look at the record. We then turn to Terry's claim Sophie's best interests dictate he be granted physical care. In determining physical care for a child, our first and governing

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consideration is the best interest of the child. Iowa R. App. P. 6.904(3)(o). When physical care is an issue in a paternity action, we consider the factors found in Iowa Code section 598.41 (2009). Iowa Code

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