IN THE COURT OF APPEALS OF IOWA

No. 15-1874

Filed November 23, 2016

JENSON NEWTON,

Plaintiff-Appellant,

vs.

SHIRENE NAJM,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

Father appeals from the decree granting the mother physical care of their 

two children. AFFIRMED.

Justin J. Gross of Community Lawyers of Iowa, Des Moines, for appellant.

Shirene Najm, Kansas City, Missouri, appellee pro se.

Considered by Mullins, P.J., McDonald, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2

MCDONALD, Judge.

Jenson Newton appeals the district court’s decree granting physical care 

of Newton’s minor children J.M.N. (born 2006) and J.M.N. (born 2008) to the 

children’s mother, Shirene Najm. Newton argues it is in the children’s best 

interests to award him physical care of the children.

Our review is de novo. See Iowa R. App. P. 6.907; Lambert v. Everist, 

418 N.W.2d 40, 42 (Iowa 1988); see also, e.g., Stieneke v. Sargent, No. 15-

1643, 2016 WL 2745058, at *1 (Iowa Ct. App. May 11, 2016). We review the 

entire record and decide anew the factual and legal issues presented. See In re 

Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Prior cases 

have little precedential value; the court must make its determination based on the 

facts and circumstances of each case. See In re Marriage of Kleist, 538 N.W.2d 

273, 276 (Iowa 1995); see also, e.g., In re Marriage of Snowden, No. 14-1920, 

2015 WL 4233449, at *1 (Iowa Ct. App. July 9, 2015) (“All happy families are 

alike; each unhappy family is unhappy in its own way.” (quoting Leo Tolstoy, 

Anna Karenia 1 (1873))). “Although we exercise de novo review, we do afford 

the district court some deference.” In re Marriage of Diischer, No. 15-2103, 2016 

WL 5930912, at *1 (Iowa Ct. App. Oct. 12, 2016); see also In re Marriage of 

Wood, No. 15-2204, 2016 WL 4384407, at *1 (Iowa Ct. App. Aug. 17, 2016) (“We 

do give some deference to the decision of the district court where specific, nongeneralized findings and conclusions have been made.”); Kleist, 538 N.W.2d at 

278 (“[W]e give considerable weight to the sound judgment of the trial court who 

has had the benefit of hearing and observing the parties firsthand.”).
3

The parties were never married. “The criteria used in making the physical 

care determination are the same for married and unmarried parents.” Stieneke, 

2016 WL 2745058, at *1; see also Lambert, 418 N.W.2d at 42. The Iowa Code 

defines “physical care” as “the right and responsibility to maintain a home for the 

minor child and provide for the routine care of the child.” Iowa Code § 598.1(7)

(2015). In making the physical care determination, we look to the factors set 

forth in Iowa Code section 598.41(3) and enumerated in our case law. See Iowa 

Code § 600B.40; In re Marriage of Hansen, 733 N.W.2d 683, 696–700 (Iowa 

2007); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974); see also, 

e.g., Steineke, 2016 WL 2745058, at *1. “Each factor, however, does not 

necessarily impact the decision with equal force.” In re Marriage of Daniels, 568 

N.W.2d 51, 54 (Iowa Ct. App. 1997). In considering these factors, our ultimate 

objective “is to place the child in the environment most likely to bring him to 

healthy mental, physical, and social maturity.” McKee v. Dicus, 785 N.W.2d 733, 

737 (Iowa Ct. App. 2010). “The controlling consideration is the best interests of 

the child.” Stieneke, 2016 WL 2745058, at *1; see also Iowa Code § 598.1(1) 

(“‘Best interest of the child’ includes but is not limited to the opportunity for 

maximum continuous physical and emotional contact possible with both parents, 

unless direct physical or significant emotional harm to the child may result from 

this contact. Refusal by one parent to provide this opportunity without just cause 

shall be considered harmful to the best interest of the child.”). We will “ultimately 

decide[ ] by determining under the whole record which parent can minister more 

effectively to the long-range best interests of the children.” Winter, 223 N.W.2d 

at 166 (citation omitted).
4

Newton, born 1985, and Najm, born 1980, were never married. The two 

were in a relationship from approximately 2004 to 2008. Their two children were 

born from the relationship. The couple had resided in Kansas City, Kansas,

while together and for a time after they separated. Paternity was established in 

Kansas. A Kansas court granted Najm temporary physical care of the children in 

2008. In 2011, Najm moved to Arizona with the children. After unsuccessfully 

attempting to gain physical care of the children, Newton moved to Iowa to be 

closer to his other child from a different relationship. In 2013, the parties’ 

children came to live with their father in West Des Moines by agreement of the 

parties. Najm eventually moved back to Kansas City in 2014 and obtained

housing and employment there.

After the children had been in West Des Moines with their father, the 

parties disputed whether the children should be returned to the care of the 

mother in Kansas City or remain in West Des Moines. Newton filed the instant 

petition to resolve the issue. The district court determined it was in the best 

interests of the children for Najm to have physical care. The district court found 

both parents cared for the children and Newton and Najm supported the other 

being in the children’s lives. The court found it was in the children’s best 

interests to reside with Najm because she could provide a routine and stable 

environment in which the children could thrive. See Iowa Code § 598.41(3)(a); 

Winter, 223 N.W.2d at 166 (stating factors to consider are “[t]he characteristics of 

each parent, including age, character, stability, mental and physical health” and 

“[t]he nature of each proposed environment, including its stability and 

wholesomeness”). The district court’s finding was based on Najm’s history
5

serving as the children’s primary caregiver and the fact Najm’s and Newton’s 

extended families reside in Kansas. See Iowa Code § 598.41(3)(d); Winter, 223 

N.W.2d at 166. The district court also determined Newton had failed to take 

steps to provide for the regular dental and medical care for the children. See

Winter, 223 N.W.2d at 166 (stating a factor to consider is “[t]he capacity and 

interest of each parent to provide for the emotional, social, moral, material, and 

educational needs of the children”). There was also evidence Newton had failed 

to properly maintain the children’s hygiene. See id. Additionally, the court found 

credible Najm’s assertions that Newton has denied her maximum continuing 

contact with the children during the period the children lived with Newton. See 

Iowa Code § 598.41(3)(c), (e) (listing factors to consider as “[w]hether the 

parents can communicate with each other regarding the child’s needs” and 

“[w]hether each parent can support the other parent’s relationship with the child”).

Newton challenges the district court’s findings and the weight it placed on 

certain evidence in the record as opposed to others. On de novo review, we find 

there is no reason to disturb the district court’s decree. The district court applied 

the factors set forth in section 598.41(3) and Winter to reach an equitable care 

arrangement. We conclude it is in the children’s best interests to award Najm 

physical care of the children with Newton to have liberal visitation. We affirm the 

judgment of the district court.

AFFIRMED.