Iowa Civil Code 598.41 is a law the regulates how child custody between two parents is decided in Iowa. It is based on the idea of protecting children and/or doing what is “best” for the children. However, it is much too general and allows for far too much judicial discretion which allows judges to insert their personal biases and even prejudices in making their determinations.
Currently, the standard for courts across Iowa and the nation is “in the best interest of the child.” Many do not even give it a second thought. Who could argue with such a “common sense” idea?
But who decides what the “best interest” is?
What if, for example, we use this standard for other things in life? What about the “best interest of the country?” What if in every court in the land the standard became “the best interest of the country” instead of being innocent until proven guilty or having a trial by jury? Why waste all those resources accumulating evidence when “Jill saw Jack steal that car?”
This country would be MUCH more efficient at fighting crime! Think of the time saved! In the “best interest of the country,” Jack should be locked up because there is a preponderance of the evidence that he may have committed a crime. Trials would be quick and easy, in and out. Sure, some innocent people would be caught up in the system, but that is a small price to pay for “the best interest of the country.” Isn't it?
Today, you can go to a store in broad daylight, steal a case of beer in front of 10 witnesses, and you are still guaranteed a trial by a jury of your peers even though the punishment for theft is relatively small.
Yet, the right to raise your own children can be taken from ANY single parent at the whim of a judge who can use the “best interest of the child” standard to impose his or her PERSONAL opinions on how to best raise a child. All it takes is one parent to bring the matter to the court, and the court takes jurisdiction. The other parent has no choice but to come to court and defend themselves.
There is no jury, and in fact, even if there is no evidence that either parent did anything wrong, according to Iowa law a judge can just strip either parent of their parental rights based on ” the best interest of the children.”
Don't believe it? Here's the current law: Iowa code 598.41a.
“If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent.”
What this means is that even though both parents have LEGAL custody, because neither of them has been a danger to the children in any way, a judge can deny one of the parents the right to raise their child “just because.”
According to this law, they don't even need to justify WHY they are denying a parent rights with their children. It is just allowed.
So instead of a judge making a more difficult decision on what the parents disagree on, for instance, what school the child goes to, and ruling on that, a judge can just take the easy route and remove a parent from day to day decision making and interaction with the children based on the fact that the parents disagree. Problem solved, and bring in another case. Who cares that the children lose a parent in the process?
Don’t think the children lose a parent because they still get visitation every other weekend?
Consider this: How can anyone realistically parent if they only see their children four days a month? To put it into perspective, consider how much influence a grandparent has in children’s lives vs. involved parents who see their children every day? This is essentially the role parents are relegated to by having their parenting time reduced to four days a month.
Finally, and most importantly, what do you tell a four-year-old when she asks why she hardly sees her daddy when all her life, she has had her daddy there equally with her mother? Every diaper change, Every midnight feeding, Every nightmare wakeup, Every bump and fall. Equally with the mother until her parents separated.
Parents divorce their spouses; not their kids. This is what is wrong with the current law, and this is why it needs to change. It is a HUMAN RIGHT to raise your own child unless you are proven to be a danger to your child because of abuse or neglect, but not because you disagree with your ex.
Children do not suffer moving back and forth between two loving homes and two loving parents like is often claimed by those opposing equal parenting. Children suffer when one of those loving parents is removed from their life. Study after study has shown this.
Iowa can lead the way on what is undeniably a human right, or be dragged along after the rest of the country changes their laws, but this is something that is way overdue and will happen.
Why not lead the way?
This article is a guest submission by Tom McDermott of Clinton, Iowa [DISCLAIMER: The opinions expressed in guest posts, are the personal opinions of the author. They may or may not reflect the views of Families United Action Network (FUAN) or its individual members. Note that submissions may be edited for clarity if needed.
Tom McDermott is from Clinton, Iowa. He joined the Army right out of high school, and eventually retired from the National Guard after twenty years of service. During this time, he was also in law enforcement (14 years), resigning in 2016 for personal reasons.
Tom is now is a full-time advocate for equal parenting rights. He works diligently in that role except on days when he has his children. On those days, he devotes every minute to them being keenly aware of the limited time.