IN THE COURT OF APPEALS OF IOWA

No. 17-0348

Filed September 13, 2017

MANDY KAY HENSCH,

Plaintiff-Appellant,

vs.

NICHOLAS ALLEN MYSAK,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, 

Judge.

The mother appeals from a decree establishing paternity, custody, 

visitation, and support. AFFIRMED.

Mark A. Simons of Simons Law Firm, P.L.C., West Des Moines, for 

appellant.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West 

Des Moines, for appellee.

Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

Mandy Hensch and Nicholas Mysak are the parents of H.M., born in 

August 2014. Shortly after the birth of the child, Hensch and Mysak ended their 

romantic relationship. Although no longer in a romantic relationship, Hensch and 

Mysak cohabited until November 2015. At that time, Mysak moved out of the 

shared residence and into his own residence. In February 2016, Hensch filed 

this action to establish paternity, custody, visitation, and support. Although 

Hensch’s prayer for relief requested sole legal custody and physical care of the 

child, the parties entered an agreement on temporary matters, agreeing to joint 

legal custody and shared care of the child. The parties exercised joint legal 

custody and shared care of the child through trial. Following trial, the district 

court entered its decree, making the temporary arrangement permanent and 

ordering Mysak to pay child support. Hensch now appeals. She seeks physical 

care of the child.

Our review of equitable proceedings is de novo. See Iowa R. App. P.

6.907; Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We review the entire 

record and decide anew the factual and legal issues preserved and presented for 

review. See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 

1998). Although our review is de novo, we afford deference to the district court 

for institutional and pragmatic reasons. See In re Marriage of Morrison, No. 16-

0886, 2017 WL 936152, at *1 (Iowa Ct. App. Mar. 8, 2017). This means we give 

weight to the district court’s findings of fact. See In re Marriage of Gust, 858 

N.W.2d 402, 406 (Iowa 2015). This also means we will affirm the district court 

unless the district court failed to do substantial equity. See In re Marriage of 
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Mauer, 874 N.W.2d 103, 106 (Iowa 2016); In re Marriage of Lukowicz, No. 14-

0088, 2015 WL 162089, at *4 (Iowa Ct. App. Jan. 14, 2015) (using substantial 

equity standard). In exercising our review, “[p]rior cases are of little precedential 

value, except to provide a framework for analysis, and we must ultimately tailor 

our decision to the unique facts and circumstances before us.” In re Marriage of 

Kleist, 538 N.W.2d 273, 276 (Iowa 1995) (citing In re Marriage of Will, 489 

N.W.2d 394, 397 (Iowa 1992)).

When physical care is at issue, our primary consideration is the best 

interests of the child. See Iowa R. App. P. 6.904(3)(o). “The objective of a 

physical care determination is to place the children in the environment most likely 

to bring them to health, both physically and mentally, and to social maturity.” In 

re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Our case law 

provides “a nonexclusive list of factors to be considered when determining 

whether a joint physical care arrangement is in the best interests of the child.” In 

re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007). “The factors 

are (1) ‘approximation’—what has been the historical care giving arrangement for 

the child between the two parties; (2) the ability of the spouses to communicate 

and show mutual respect; (3) the degree of conflict between the parties; and (4) 

‘the degree to which the parents are in general agreement about their approach 

to daily matters.’” Id. (quoting Hansen, 733 N.W.2d at 697–99). 

“Although petitioner and respondent were never married, no higher burden 

of proving fitness as a parent rests upon the father. The legal analysis employed 

in resolving a question concerning the custody of a child born of such a union is 

the same as that which would have been utilized if the child’s parents had been 
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married and a dissolution of their marriage had resulted.” Lambert v. Everist, 418 

N.W.2d 40, 42 (Iowa 1988). See Iowa Code § 600B.40 (2016) (providing section 

598.41 shall apply in determining the visitation and custody arrangements of a 

child born out of wedlock). Where, as here, either parent requests joint or shared 

care of the child, if the district court “denies the request for joint physical care, the 

determination shall be accompanied by specific findings of fact and conclusions 

of law that the awarding of joint physical care is not in the best interest of the 

child.” Iowa Code § 598.41(5)(a). “[T]his passage does not create a 

presumption in favor of joint physical care.” In re Marriage of Fennelly, 737 

N.W.2d 97, 101 (Iowa 2007). It does, however, require a specific finding that 

joint physical care is not in the best interest of the child. See Iowa Code §

598.41(5)(a). 

With the foregoing principles in mind, we turn to the present case. Shared 

physical care approximates the parties’ prior care arrangement. Both parents 

took time off from work after H.M.’s birth to care for the child. The child lived with 

Hensch and Mysak from the time of his birth until November 2015, when Mysak 

moved out of the shared residence. The care arrangement between that date 

and February 2016 is unclear. However, from February 2016 through the time of 

trial, the parties exercised an agreed-upon shared-care arrangement. The 

arrangement has worked well. Both parents are gainfully employed and can 

support the financial needs of the child. The parents live in close proximity to 

one another, making transportation and exchanges easier. The child is thriving 

in the current care arrangement. 
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Hensch discounts the importance of the approximation factor in this case. 

She argues the arrangement has not been of long duration. We reject the notion 

that the care arrangement was not of sufficiently long duration to have 

significance in the case. Hensch and Mysak have exercised shared care of H.M. 

for all or almost all of his life. The arrangement has proven beneficial to the child. 

While past performance is not necessarily a predictor of future success, in family 

law matters, past performance is a strong indicator of what is yet to come. See 

Hansen, 733 N.W.2d at 696 (explaining “past caretaking patterns likely are a 

fairly reliable proxy of the intangible qualities such as parental abilities and 

emotional bonds that are so difficult for courts to ascertain”).

At the time of trial, the parties’ ability to communicate was strained. This 

weighs against an award of shared physical care. As in many cases of recent 

vintage, much of the communication conflict arises out of the parents’ inability to 

stop sending each other electronic communication, particularly text messages. 

The district court aptly called this a “state of virtual cohabitation.” The district 

court made several findings in this regard: 

The parties trade accusations regarding the extent and 

nature of their texting. In preparation for trial Nicholas had a friend 

analyze the number of the parties’ text messages to show they 

were sending and receiving a similar number to and from each 

other. However, the sheer number of texts does not tell the entire 

story. In tone and substance, many of Nicholas’ written 

communications to Mandy, though ostensibly about H.M., display a 

focus on Mandy. Nicholas’ texts tend to be longer and they 

frequently devolve into attempts to draw Mandy into arguments or 

extended conversations. Additionally, Nicholas’ texts tend 

frequently to be about, or include, references to his and Mandy’s 

relationship.
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The district court concluded that Mysak did not “bear[] all the blame” for the 

parties’ communication issues:

Some of Mandy’s communications are condescending and 

dismissive of Nicholas’ concerns when H.M. has been ill. 

Additionally, Mandy has not been flexible when Nicholas has made 

reasonable requests for additional time with H.M. although, again, 

some of Nicholas’ requests for more time seem more focused on 

provoking argument and of painting a bad picture of Mandy than on 

a genuine desire for more time with H.M. Additionally, in texts 

Mandy often, even after Nicholas has pointed out that H.M. is both 

of their child, refers to H.M. as “my” baby or “my” child, 

understandably provoking anger and defensiveness in Nicholas. 

Finally, even though her texts are focused on H.M. when Nicholas 

has him, they are excessive and sometimes imply that Nicholas is 

not capable of caring for H.M.

The degree of tension or conflict between Hensch and Mysak is somewhat 

elevated. This is due, in no small part, to the parties’ never-ending stream of 

electronic communication with each other. It is also due, in part, to the parties’

perception of each other. The evidence showed Mysak kept a journal in 

preparation for trial. Mysak’s journal revealed a critical and condescending 

attitude toward Hensch. It also showed Mysak portrayed himself in an overly

flattering light. Hensch perceived Mysak to have a controlling attitude. She also 

perceived him to be immature. The district court acknowledged these difficulties 

but noted several mitigating factors that nonetheless supported an award of 

shared physical care:

Nicholas testified that he is in a new relationship and hopes that 

Mandy finds a new relationship as well. This, if genuine, should 

help Nicholas get past the resentment and jealousy he feels as a 

result of the end of the parties’ relationship. Second, the intense 

communication between the parties when H.M. is in the other 

party’s care is undoubtedly attributable in part to his young age and 

the fact that he is each party’s first child. Third, Nicholas’ posturing, 

including his exaggerated journal writing is, hopefully, mostly 

attributable to his defensiveness and effort to convince the court he 
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can be a good parent and not emblematic of his personality in 

general.

Although cooperation and communication are essential in a shared-care 

arrangement, tension between the parents is not alone sufficient to demonstrate 

a shared-care arrangement will not work. See In re Marriage of Stafford, 386 

N.W.2d 118, 121 (Iowa Ct. App. 1986). Instead, the communication difficulties 

and tension must rise above the not atypical acrimony that accompanies litigation 

in family-law matters. See In re Marriage of Ertmann, 376 N.W.2d 918, 920 

(Iowa Ct. App. 1985). The communication problems and conflict in this case do 

not rise to this level. Moreover, the district court inserted several provisions in 

the decree related to “reform[ing] the nature and extent” of the parties’ 

communication with each other. These included limiting the child’s FaceTime 

conversations with the absent parent; instructing only the parent taking custody 

need be present at visitation exchanges if the exchange occurs at daycare; 

stating the “parties do not need to have daily, multiple, lengthy written 

conversations” about H.M.; and noting “it would be nice if the parties could be 

flexible and accommodating of each other when one requests some adjustment 

of the parenting time schedule.” These measures seem appropriate under the 

circumstances. Finally, like the district court, we expect the parties’ 

communication difficulties and conflict to dissipate as the parties become further 

removed from the intense heat of the litigation and trial process. 

We finally consider the degree to which Hensch and Mysak are in general 

agreement about their approach in raising H.M. The record reflects the parents 

are both good parents and in general agreement regarding fundamental issues of 
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importance in raising the child. H.M. is the first child for both parents. They have 

both taken positive steps, together and alone, to be good parents. For example, 

Hensch and Mysak attended parenting classes, read parenting books, attended

prenatal doctors appointments together, and sought out counsel from family and 

friends. The evidence shows the parties in fact can and do cooperate with each 

other on a regular basis on child-rearing matters. For example, they held a joint 

birthday party for H.M., which involved both sides of the family. They have 

attended appointments with each other after their separation. They also appear 

in general agreement regarding disciplinary matters.

In sum, the relevant factors weigh in favor of awarding Hensch and Mysak 

joint physical care of H.M. The continuity of the parties’ caregiving relationship 

with the child strongly militates in favor of the award of joint physical care of the 

child. While the parties have had some communication difficulties and personal 

conflict, there is no evidence the communication difficulties or personal conflict 

interfered with their ability to act in the best interest of the child. See In re 

Marriage of Schnitzler, No. 14-0858, 2015 WL 800064, at *4 (Iowa Ct. App. Feb. 

25, 2015) (finding parties’ communication difficulties throughout divorce did not 

preclude award of shared physical care). Further, we expect the parties’ 

communication difficulties and conflict to resolve once they move past this 

litigation and communicate less often. Finally, Hensch and Mysak both love and 

care for the child and are in general agreement regarding the upbringing of the 

child. There is no evidence showing joint physical care of the child is not in 

H.M.’s best interest. We thus see no reason to disturb the judgment of the 

district court. 
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Mysak requests appellate attorney fees. Appellate attorney fees are not a 

matter of right but may be awarded as a matter of discretion. See Iowa Code 

§ 600B.26 (“In a proceeding to determine custody or visitation, or to modify a 

paternity, custody, or visitation order under this chapter, the court may award the 

prevailing party reasonable attorney fees.”). In determining whether to award 

appellate attorney fees, we consider the needs of the party making the request, 

the ability of the other party to pay, and whether the party making the request 

was obligated to defend the decision of the trial court on appeal. Having 

considered those factors, we decline to award appellate attorney fees.

AFFIRMED.