In Re the Marriage of Behn, 416 N.W.2d 100 (Iowa Ct. App. 1987). · Go Syfert
In Re the Marriage of Behn, 416 N.W.2d 100 (Iowa Ct. App. 1987). Cases Citing This Book View Copy Cite
G Cite
30 citation events (20 in the last 25 years) across 2 distinct courts.
Strongest positive: Kristin M. Potter v. Eric J. Smith (iowactapp, 2019-12-18)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Kristin M. Potter v. Eric J. Smith
Iowa Ct. App. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
we do not find barbara's moves with her husband justify a change of physical care.
discussed Cited as authority (verbatim quote) In Re the Marriage of Tracy Lynn Hoffman and Ernst Franklin Hoffman, Upon the Petition of Tracy Lynn Hoffman (2×) also: Cited as authority (rule)
Iowa · 2015 · quote attribution · 1 verbatim quote · confidence high
we do not find barbara's moves with her husband justify a change of physical care.
discussed Cited as authority (verbatim quote) Amended September 28, 2015 In RE the Marriage of Tracy Lynn Hoffman and Ernst Franklin Hoffman, Upon the Petition of Tracy Lynn Hoffman
Iowa · 2015 · quote attribution · 1 verbatim quote · confidence high
we do not find barbara's moves with her husband justify a change of physical care.
discussed Cited as authority (verbatim quote) In Re the Marriage of Brian Joseph Hart and Danielle Marie Hart Upon the Petition of Brian Joseph Hart, and Concerning Danielle Marie Hart
Iowa Ct. App. · 2014 · signal: see · quote attribution · 1 verbatim quote · confidence high
where there is good reason for moving children in our highly mobile society a change in the custodial parent's geographic location is not justification in itself for change of custody
cited Cited as authority (rule) In re the Marriage of Bickerton
Iowa Ct. App. · 2021 · confidence medium
In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987).
discussed Cited as authority (rule) In re the Marriage of Rosonke
Iowa Ct. App. · 2019 · confidence medium
Cf. Herron v. Herron, 141 N.W.2d 562, 566 (1966) (“The wishes of a seven or eight-year-old or even a ten-year-old should be given little if any weight since they are not of an age to exercise discretion in choosing a custodian.”); Hunt, 476 N.W.2d at 102 (finding weight of nine-year-old child’s custody preference was diminished based on evidence showing the father’s actions influenced her testimony); In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987) (noting that although testimony by ten-and-one-half-year-old child the court 7 deemed to be “mature beyond her years” c…
cited Cited as authority (rule) In Re the Marriage of Dean Alan Ritchison and Wendy Jo Ritchison Upon the Petition of Dean Alan Ritchison, and Concerning Wendy Jo Ritchison, N/K/A Wendy Jo Jensen
Iowa Ct. App. · 2017 · confidence medium
Their preference “is entitled to less weight in this modification than it would be given in the original 5 custody proceedings.” In re Marriage of Behm, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987).
cited Cited as authority (rule) In Re the Marriage of Darin L. Crooks and Jenisha Rae Garden Upon the Petition of Darin L. Crooks, and Concerning Jenisha Rae Garden
Iowa Ct. App. · 2015 · confidence medium
In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987).
cited Cited as authority (rule) McKee v. Dicus
Iowa Ct. App. · 2010 · confidence medium
“Deciding custody is far more complicated than asking children with which parent they want to live.” In re Marriage of Behn, 416 N.W.2d 100, 101 (Iowa Ct.App.1987).
discussed Cited as authority (rule) In Re the Marriage of Whalen
Iowa Ct. App. · 1997 · confidence medium
In re Marriage of Weidner, 338 N.W.2d 351, 360-61 (Iowa 1983); In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1983); In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa App.1987); Jerome, 378 N.W.2d at 305 .
discussed Cited as authority (rule) In Re Marriage of Anderson (2×)
Iowa Ct. App. · 1993 · confidence medium
In re Marriage of Behn, 416 N.W.2d 100,102 (Iowa App.1987); In re Marriage of Eller broek, 377 N.W.2d 257, 258-59 (Iowa App.1985).
cited Cited as authority (rule) In Re the Marriage of Smith
Iowa Ct. App. · 1992 · confidence medium
In re Marriage of Behn, 416 N.W.2d 100, 101 (Iowa App.1985).
cited Cited as authority (rule) In Re the Marriage of Hunt
Iowa Ct. App. · 1991 · confidence medium
In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa App.1987).
discussed Cited as authority (rule) In Re Marriage of Scott
Iowa Ct. App. · 1990 · confidence medium
While a number of cases have concluded a change in the custodial parent’s geographical location is not alone justification for a change of custody, In re Marriage of Day, 314 N.W.2d 416, 420 (Iowa 1982); In re Marriage of Behn, 416 N.W.2d 100, 101 (Iowa App.1987), it is a factor to consider in determining which parental environment will provide the most stability and security to the children.
cited Cited "see" In re the Marriage of Keller
Iowa Ct. App. · 2021 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100 , 101–02 (Iowa Ct. App. 1987).
cited Cited "see" David Eric Wolff v. Mindy Ann Wilson n/k/a Mindy Ann Ennis
Iowa Ct. App. · 2020 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100,102 (Iowa Ct. App.1987).
discussed Cited "see" Dylan Bartz v. Gina M. McDonald
Iowa Ct. App. · 2020 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100, 101 (Iowa Ct. App. 1987) (finding mother’s moves with her new husband did not justify change in physical care).
cited Cited "see" Jeffrey A. Meyer v. Brandi R. Harris, N/K/A Brandi R. Norbert
Iowa Ct. App. · 2015 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987).
discussed Cited "see" In Re the Marriage of Kyle Lou Ricke and Jill Dionne Ricke Upon the Petition of Kyle Lou Ricke, and Concerning Jill Dionne Ricke
Iowa Ct. App. · 2015 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987) (noting that in determining the weight to be given to a child’s wishes, we consider the following factors: (1) the child’s age and educational level; (2) the strength of the child’s preference; (3) the child’s relationship with family members; and (4) the reasons the child gives for his decision); cf. McKee v. Dicus, 785 N.W.2d 733, 738 (Iowa Ct. App. 2010) (giving “some weight” to the preferences of a fifteen-year-old who “expressed a strong preference” to live with his father).
cited Cited "see" Wade Stoner v. Heather Larson N/K/A Heather Miller
Iowa Ct. App. · 2014 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987).
cited Cited "see" In Re the Marriage of Tracy Lynn Hoffman and Ernst Franklin Hoffman Upon the Petition of Tracy Lynn Hoffman, and Concerning Ernst Franklin Hoffman
Iowa Ct. App. · 2014 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987); In re Marriage of Zabecki, 389 N.W.2d 396, 399-400 (Iowa 1986).
cited Cited "see" In Re the Marriage of Mayfield
Iowa Ct. App. · 1998 · signal: see · confidence high
See In re Marriage of Behn, 416 N.W.2d 100, 101-02 (Iowa App.1987).
cited Cited "see, e.g." In re the Marriage of Waterhouse
Iowa Ct. App. · 2020 · signal: see also · confidence medium
In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998); see also In re Marriage of Behn, 416 N.W.2d 100, 101-02 (Iowa Ct. App. 1987).
Retrieving the full opinion text from the archive…
In Re the MARRIAGE OF Alvin BEHN and Barbara Behn. Upon the Petition of Alvin Behn, Petitioner-Appellee, and Concerning Barbara Behn, Respondent-Appellant
86-1369.
Court of Appeals of Iowa.
Sep 30, 1987.
416 N.W.2d 100
Richard R. Phillips, Decorah, for respondent-appellant., Richard D. Zahasky, Decorah, for petitioner-appellee.
Oxberger, Sackett, Snell.
Cited by 25 opinions  |  Published
SACKETT, Judge.

In this case we must determine whether the trial court was correct in transferring[*101] physical care of three minor children from appellant-mother Barbara Behn to appellee-father Alvin Behn. We determine the trial court was not correct and modify its order to leave physical care with Barbara.

The parties’ marriage was dissolved in 1985. The parties had three children: Lori, born in 1976; Jennifer, born in 1980; and Malinda, born in 1982. The decree granted Barbara and Alvin joint custody of their children. Physical care of the children was placed with Barbara. The decree provided the children were to be with Barbara during the school year and with Alvin during the summer months. At the time the decree was entered Barbara lived with the children in the State of Washington. Today she lives with her new husband, a First Sergeant in the United States Army, in Fort Leonard Wood, Missouri. Alvin has not remarried and continues to live in the former family home in Winneshiek County.

The children spent the summer of 1986 with Alvin. Lori expressed a strong desire to remain with her father. Lori, with a babysitter’s help, sought the advice of an attorney. Subsequently Alvin filed a petition for modification asking that physical care of the children be given to him. After a hearing the trial court determined physical care should be transferred to Alvin. This appeal followed.

Our review is de novo. Iowa R.App.P. 4

Alvin was made a joint custodian in the dissolution decree. He consequently is benefited in seeking physical care by the inference he has met the joint custody tests set forth in In re Marriage of Burham, 283 N.W.2d 269, 274 (Iowa 1979). See In re Marriage of Leyda, 355 N.W.2d 862, 864 (Iowa 1984). However, in seeking a change in physical care he carries a burden similar to that imposed on a parent seeking a change of custody. Id. Alvin has the burden to establish by a preponderance of evidence that conditions since the dissolution decree was entered have so materially and substantially changed that the children’s best interests make it expedient to transfer their physical custody to him. Id. at 865; In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). Both parties are loving and capable parents and are concerned with their children’s upbringing. The children will be well cared for in either home.

The trial court’s findings indicate two factors were considered in ordering the modification. The first was the fact that Barbara’s geographic location has changed since the decree was entered and because of her new husband’s employment with the army further moves are likely. Second was the determination Lori is very firm in her position she wished to remain with her father. The trial court found Lori is mature beyond her years and states good reasons in support of her position.

We address the trial court’s findings. Where there is good reason for moving children in our highly mobile society a change in the custodial parent’s geographic location is not justification in itself for change of custody. In re Marriage of Weidner, 338 N.W.2d 351, 360-61 (Iowa 1983); Frederici, 338 N.W.2d at 159; In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa App.1985). While stability is important in a child’s life, stability can be nurtured as much by leaving children with the same custodial parent as leaving them in the same neighborhood. Jerome, 378 N.W. 2d at 306. Barbara’s husband has secure employment with the United States Army. He is subject to transfers in location. We do not find Barbara’s moves with her husband justify a change of physical care. See Frederici, 338 N.W.2d at 159.

We address the second reason cited by the trial court: The adamant desire of a ten-and-one-half-year-old girl, whom the trial court determined to be mature beyond her years, to live with her father. Deciding custody is far more complicated than asking children with which parent they want to live. In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa App.1985). Iowa Code section 598.41(3)(f) provides:

In considering what custody arrangement ... is in the best interest of the[*102] minor child, the court shall consider the following factors:
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f. Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.

In determining the weight to be given Lori’s testimony we consider among other things the following factors.

1. Lori’s age and educational level.
2. The strength of Lori’s preference.
3. Lori’s relationship with family members.
4. The reasons she gives for her decision.

See Ellerbroek, 377 N.W.2d at 258-59. We recognize too, although Lori’s testimony may give us some insight, we are not truly knowledgeable about what goes on behind closed doors in these family homes. Lori is privy to these interactions and they have influenced her decision. Id. at 259. Lori’s preference is entitled to less weight in this modification action than it would be given in the original custody proceedings. Smith v. Smith, 257 Iowa 584, 591, 133 N.W.2d 677, 681 (1965). We determine Alvin has failed to meet the burden necessary to modify the dissolution decree.

We modify the decree to return physical care to Barbara and provide for visitation as per the original decree. We reinstate Alvin’s obligation to pay child support as of the date of the filing of this opinion.

Costs are taxed to Alvin. We do not award attorney fees to either party.

AFFIRMED AS MODIFIED.