IN THE IOWA DISTRICT COURT FOR _______________ COUNTY

|
UPON THE PETITION OF |
| Case No. _____________
____________, |
Petitioner, |
| RESPONDENTS TRIAL BRIEF
AND CONCERNING | FOR ODIFICATION PROCEEDING
|
___________, |
Res!on"ent. |
|
COMES NOW, the Respondent, ___[insert name here]______, and presents to
the Court and opposing party, the following rial !rief for the Modifi"ation #ro"eeding$
I. Factual Background
%$ &n Order finali'ing the dissolution of marriage was filed on ___[date]___,
granting (oint physi"al "are to the parties$
)$ Se"tion _____, of the de"ree sets forth the (oint physi"al pla"ement pro*isions
and states, +___________________[,uote se"tion of de"ree]_____________,-
and is su.(e"t to the pending modifi"ation .efore this Court$
/$ he #etitioner unilaterally made the de"ision to relo"ate more than /0 miles to
another "ity and automati"ally assume the role as the +"ustodial parent- ending
the (oint physi"al "are arrangement$
II. Evidence & Testimonies
%$ he #etitioner unilaterally made the de"ision to relo"ate more than /0 miles to
another "ity and automati"ally assume the role as the +"ustodial parent- ending
the (oint physi"al "are arrangement$
)$ &llowing our "hildren to relo"ate is not in the +.est interest of the "hild- .e"ause1
a$ Our "hildren "urrently reside with .oth parents *ia a (oint physi"al "are
arrangement$
.$ Our "hildren are "urrently enrolled in the _____[name]____ s"hool distri"t
and are e2"elling a"ademi"ally$
"$ Our "hildren "urrently ha*e e2tended family residing in "lose pro2imity$
d$ Our "hildren ha*e friends where they "urrently reside$
e$ Our "hildren a"ti*ely parti"ipate in sports and other e2tra "ir"ular a"ti*ities
in __[name of "ity]__$
f$ he Respondent has e,ually "ontri.uted to raising our "hildren .y,
in"luding .ut not limited too, ma3ing sure our "hildren arri*e at s"hool on
time, ma3ing sure our "hildren are pi"3ed up from s"hool, ma3ing sure our
"hildren "omplete their studies, ma3ing sure our "hildren attend all e2tra
"ir"ular a"ti*ities, ma3ing sure our "hildren attend all s"heduled do"tor
and dental appointments, et"$
g$ he Respondent has more than ade,uate housing to "are for our "hildren
4see photos of residen"e mar3ed e2hi.it __5$
h$ he Respondent has a stru"tured atmosphere in his residen"e$
i$ he Respondent has .een employed with ___[name employer]___ for
_[6]_ years$
/$ here is a presumption long held .y the Courts that the +.est interest of the "hild-
is the "ontrolling fa"tor in "hild "ustody "ases$ See Thielges, 7)/ N$W$)d at )/89
In re Marriage of Hansen, :// N$W$)d 7;/, 7<8 4=owa )00:5$
>$ & parent must show the a.ility to administer superior "are in order to "hange the
physi"al pla"ement pro*isions$ See In re Marriage of Grantham, 7<; N$W$)d
%>0, %>7 4=owa )00859 Petition of Anderson, 8/0 N$W$)d :>%, :>%?>) 4=owa Ct$
&pp$ %<<85$ @nli3e an original "ustody determination, in a modifi"ation
pro"eeding, the ,uestion is not whi"h home is .etter, .ut whether the parent
see3ing the "hange has demonstrated he or she "an offer the "hild superior "are$
In re Marriage of Rosenfeld, 8)> N$W$)d )%), )%/ 4=owa Ct$ &pp$ %<<>5$ =f .oth
parents are found to .e e,ually "ompetent to minister to the "hildren, "ustody
should not .e "hanged$ In re Marriage of Whalen, 87< N$W$)d 7)7, 7); 4=owa Ct$
#
&pp$ %<<:5$ he #etitioner "an not meet the .urden of showing the a.ility of
pro*iding superior "are o*er the Respondent$
8$ Should the #etitioner de"ide to relo"ate, whi"h is within the s"ope of her right to
tra*el, the "hildren should pla"ed with the Respondent so distur.an"e to their
"urrent daily routine is minimi'ed$ See In re Marriage of Hansen, :// N$W$)d
8;/ 4=owa )00:5 where the Court states, In choosing which parent should be
awarded phsical care of children, the factors of continuit, stabilit, and
appro!imation are entitled to considerable weight"#
7$ & parentAs right to tra*el does not trump the +.est interest of the "hild- standard
or the rights of the other parent$ See !raun *$ Beadley, %/% Md$ &pp$ 8;;, :80
&$)d 7)>, "ert$ denied, /8< Md$ 77<, :88 &$)d %%/< 4)0005, "ert$ denied, 8/%
@$S$ %%<% 4)00%5$
:$ he E,ual #rote"tion Clause of the %>
th
&mendment of the @nited States
Constitution and the =owa Constitution &rti"le =, Se"tion % C %0 demands e,ual
(udi"ial treatment espe"ially "onsidering .oth parents are +primary "are
pro*iders- in the "urrent (oint physi"al "are arrangement$
;$ he Respondent would .e willing to re*ert .a"3 to the "urrent (oint physi"al "are
arrangement with our "hildren should the #etitioner e*er relo"ate .a"3 into this
area$
III. Legal Authorities and Other References
$raun %" Headle, %/% Md$ &pp$ 8;;, :80 &$)d 7)>, "ert$ denied, /8< Md$ 77<, :88
&$)d %%/< 4)0005, "ert$ denied, 8/% @$S$ %%<% 4)00%5
E,ual #rote"tion Clause of the %>
th
&mendment of the @nited States Constitution
In re Marriage of Grantham, 7<; N$W$)d %>0, %>7 4=owa )0085
In re Marriage of Hansen, :// N$W$)d 8;/ 4=owa )00:5
In re Marriage of Rosenfeld, 8)> N$W$)d )%), )%/ 4=owa Ct$ &pp$ %<<>5
In re Marriage of Whalen, 87< N$W$)d 7)7, 7); 4=owa Ct$ &pp$ %<<:5
$
=owa Constitution &rti"le =, Se"tion % C %0
Petition of Anderson, 8/0 N$W$)d :>%, :>%?>) 4=owa Ct$ &pp$ %<<85
Thielges, 7)/ N$W$)d at )/8
IV. onclusion
WBEREDORE, should the #etitioner relo"ate and dissol*e the a.ility to the parties
to "ontinue the "urrent (oint physi"al "are arrangement, the Respondent prays the Court
will enter an order pla"ing the "hildren with the Respondent so distur.an"e to our
"hildrenAs "urrent daily routine is minimi'ed, whi"h is in .est interest of the "hildren$
%