Gina Lynch v. Israel Moreno

IN THE COURT OF APPEALS OF IOWA

No. 21-0815
Filed May 11, 2022

GINA LYNCH,
Petitioner-Appellee,

vs.

ISRAEL MORENO,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi

Ackley, Judge.

A father appeals a decree establishing legal custody, physical care,

visitation, and child support. AFFIRMED AS MODIFIED.

Jordan D. Grube of Hope Law Firm & Associates, P.C., West Des Moines,

for appellant.

Dustin Baker of Henkels & Baker, PC, Dubuque, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

BADDING, Judge.

During their off and on relationship, Gina Lynch and Israel Moreno had a

child together. When their relationship ended for good, Moreno embarked on a

campaign to prove Lynch had sexually abused their daughter. He made reports

to the Iowa Department of Human Services, law enforcement, medical providers,

and government officials, none of whom found any merit to his allegations.

Against this backdrop, the district court granted Lynch’s request for sole

legal custody and physical care of the child with supervised visitation for Moreno.

On appeal,1 Moreno claims the court erred by (1) not allowing him to introduce

certain evidence; (2) not allowing him to cross-examine Lynch; (3) awarding Lynch

sole legal custody and physical care; (4) placing onerous conditions on his

visitation, failing to award him more visitation, and impermissibly delegating its

powers to expand visitation; and (5) awarding Lynch attorney fees. We affirm as

modified.

I. Background Facts and Proceedings

The parties met in 2016 through an online dating site. They were never

married but had a child together in June 2017. Lynch and Moreno lived together

in Lynch’s house in northeast Iowa until Moreno moved to Colorado for work when

the child was about ten months old. He came back to Iowa twice for visits before

moving back in late July 2018. Once he was back in Iowa, Moreno bounced

between sleeping on Lynch’s couch and a friend’s couch until sometime in 2019,

when Lynch told him to get the rest of his things out of her home. Shortly after

1Lynch waived her opportunity to file a brief in this appeal. See Iowa R. App.
P. 6.903(3).
3

that, Moreno lodged allegations with the Iowa Department of Human Services

against Lynch. Nothing came of these allegations.

In early February 2020, Lynch filed a petition to establish custody, physical

care, visitation, and support. She testified that she could no longer handle Moreno

showing up unexpectedly at her house or hunting her down in the community and

causing a scene. Around the same time Lynch filed her petition, Moreno reported

to law enforcement that he was concerned the child had suffered sexual abuse

while in Lynch’s care. A police officer testified that because Moreno could not

provide any specific allegations, he told Moreno to take the child to a doctor. The

officer never heard anything else from Moreno. Moreno proceeded to have the

child undergo multiple sexual assault examinations by medical professionals,

telling them Lynch or her mother had sexually abused the child.

Moreno also got the department involved, and a forensic interview of the

child was conducted. The medical professionals who completed the examinations

found no signs of sexual abuse, and the department issued two unfounded

assessment reports.2 For one of the assessments, Moreno provided the

department worker with several videos of him questioning the child about sexual

abuse. The worker noted in her report that Moreno prompted the child during

questioning and asked leading questions. During the investigation, Moreno’s

initially vague concerns of sexual abuse crystallized into vivid and specific

allegations of sexual abuse that Moreno said he either witnessed Lynch commit or

2A third unfounded assessment was issued on Moreno’s report that Lynch’s home
was unsafe because she threw “a piece of lathe that had 50 little nails sticking out
of it . . . in the front yard near the sidewalk” and that Lynch had “elbowed and
slapped her daughter.”
4

that the two-year-old child told him about. And he claimed the maternal

grandmother, who watched the child during the day, was drugging her so that she

could sexually abuse her. To support these claims, he sent dozens of pictures to

the department, many of which simply showed Lynch and the maternal

grandmother holding the child like any caretaker would. He also told the protective

worker that “he knows what a sex offender is” because he was convicted of “4th

degree sexual assault” when he was a teenager. The last assessment ended with

a finding that Moreno “has an unusual preoccupation with [a] sexualized theme,

regarding the care his daughter receives by others. He is also quick to reject

reasonable explanations and medically professional opinions, regarding the care

of his daughter.”

Like the district court, we decline to repeat the explicit details of Moreno’s

sexual abuse allegations in this decision. None were credible.3 Moreno also

contacted high-ranking government officials about his cause. He even had the

child urinate in a cup in a public restroom so he could have the urine tested to

support his suspicions of sexual abuse. In his testimony at trial, Moreno stuck with

his belief that the child was being sexually abused at the hands of Lynch or those

3 For instance, Moreno claimed that before he left for Colorado, he witnessed
Lynch molesting the child. He said this happened while Lynch was changing the
child’s diaper, and he was watching through a crack in the door. But when a
department worker visited the home and tried to look through the crack, she could
not see into the room where the diaper changing station would have been.
Moreno said that on another occasion, the child used sign language for a
sexually explicit act. Moreno claimed that Lynch or her mother taught the child this
sign because Lynch’s father is deaf. But upon investigation, the department
worker learned that the family has never used sign language to communicate with
Lynch’s father, who has seventy percent of his hearing after a cochlear implant
seven years ago. The only sign language the child knows, according to Lynch and
her mother, is the sign for “more.”
5

close to her, despite multiple medical professionals and department workers

finding the opposite.

The child regressed in her development as a result of Moreno’s obsession

with alleged sexual abuse, reverting to “baby talk” and having trouble potty-

training. At a well-child visit in August 2020, the child’s primary physician referred

the child to a therapist to ensure her experiences did not cause any emotional or

physical trauma. Before making that referral, the physician noted that she and her

colleagues have been contacted by patient’s father regarding
concerns for sexual abuse . . . either by the mother or maternal
grandmother. He has taken her to multiple ERs and had sexual
assault examinations done on this girl. Everything has been normal.
There has been no signs of sexual assault on examination.

Lynch explored many possible therapists. Moreno shot down most of them

because, as far as we can tell, they were selected by Lynch. His communication

with one counselor ended with an email from the counselor stating that she was

feeling “harassed” and would pursue legal action if contacted again.

Moreno’s testimony contained several themes. One of the main ones was

that Lynch was trying to exclude him from the child’s life. Yet he agreed on cross-

examination that Lynch allowed him to live with her and the child after he returned

from Colorado, she gave him consistent visitation after he moved out, and she

complied with the visitation provisions of the temporary-matters order. He even

agreed she helped him make up visits he missed. Some of the hundreds of text

messages between the parties that Moreno submitted as evidence did show that

Lynch was restricting unfettered visits. But those messages largely occurred in

the window between the start of Moreno’s sexual-abuse campaign and the entry

of the temporary-matters order.
6

The text messages also show Lynch tried to facilitate supervised visits, but

Moreno was resistant to anything but unlimited access to the child. He obsessively

texted Lynch, demanding to know where she and the child were. If he didn’t

receive an immediate response, he would begin hounding her family members.

Lynch’s sister-in-law described his contact as follows: “Instead of sending one text

message, he sends 22 of them in five minutes, and it is, ‘Why are you ignoring

me? Why are you not talking to me? Where is Gina?’” Moreno would go to

Lynch’s house, or her family members’ houses, demanding to see his child.

Lynch’s sister-in-law said that he once sat outside of her house trying to take

pictures of them as they were having a family dinner. She described his behavior

as scary and odd.

Soon after answering Lynch’s petition, Moreno moved for a hearing on

temporary matters, requesting physical care of the child. In August 2020, the court

awarded the parties temporary joint legal custody with temporary physical care to

Lynch. Moreno’s minimum visitation on a temporary basis was to include every

other weekend from Thursday evening to Sunday evening and every Tuesday

evening for two and one-half hours. Moreno recorded many of these interactions,

submitting some of them as evidence at the trial in February 2021.

Moreno represented himself at trial, offering a confusing array of exhibits

with a bizarre numbering system. In his pretrial brief, Moreno requested sole legal

custody and physical care of the child. He proposed that Lynch be allowed

visitation with the child “52 days of the year with holidays to be at [Moreno’s] sole

discretion,” which he implied was generous. Following trial, and based on the
7

record made before it, the district court suspended Moreno’s visitation under the

temporary-matters order.

In its ensuing decree, the court placed the parties’ child in Lynch’s sole legal

custody and physical care. The court did not provide Moreno with any visitation

due to its belief that he needed “therapy and psychiatric intervention to address his

obsession with sexual conduct.” In the event Moreno “undergoes extensive

psychiatric therapy and can establish he is being medicated for whatever diagnosis

results,” the court authorized Lynch “to permit visitation under any conditions she

deems necessary to keep her daughter safe.” Because of the disparity in the

parties’ incomes, the court awarded Lynch $2500 in attorney fees.

Moreno obtained counsel and filed a motion for a new trial or to reconsider,

enlarge, or amend. As to his motion for a new trial, Moreno complained that he

was not allowed to cross-examine Lynch and the court impermissibly delegated

judicial authority on the issues of custody and visitation. For his motion to

reconsider, enlarge, or amend, Moreno requested that his visitation be at least

equal to what he had under the temporary-matters order or a graduated visitation

schedule with concrete parameters for visitation not subject to Lynch’s discretion.

At the hearing on the motion, Moreno proposed that the court “allow for the child’s

therapist . . . to create a reunification plan which affords [him] visitation time with

the child as the therapist deems appropriate.” Lynch objected to returning to

visitation as laid out in the temporary-matters order but was “receptive to

developing a parenting plan through the therapist” and allowing for video and

supervised visits.
8

The district court denied Moreno’s motion for a new trial but found a

“progression for visitation” would be appropriate. To accomplish that goal, the

court started with virtual visits until July 2021, at which point Moreno could move

to supervised visitation on alternating Saturdays provided he complied with certain

conditions. After nine months, visitation could progress to unsupervised and be

expanded to include alternating weekends and holidays, depending on the child’s

progress, Moreno’s conduct, and the counselor’s recommendation. The ruling

provided for other potential expansions when the child reached school age.

Moreno appeals.

II. Standard of Review

We review child-custody cases under Iowa Code chapter 600B (2020) de

novo. See McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010); see also

Iowa R. App. P. 6.907; Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). Despite

our de novo review, we give strong consideration to the district court’s fact findings,

including any credibility findings. See Wilker, 630 N.W.2d at 594; see also Iowa

R. App. P. 6.904(3)(g). In child-custody cases, the first and foremost consideration

is the child’s best interest. See Iowa R. App. P. 6.904(3)(o); Phillips v. Davis-

Spurling, 541 N.W.2d 846, 847 (Iowa 1995).

III. Analysis

A. Admission of Evidence4

Moreno argues the court impermissibly prevented him from introducing

certain evidence, specifically (1) “an audio recording between him and a medical

4 Our review of Moreno’s evidentiary claims was hampered by an extremely
confusing record on exhibits. While Moreno’s pretrial brief did have a vague list of
9

provider for the parties’ minor child,” (2) “exhibits which showed that [he] did not

need to register on the sex offender registry,” and (3) “bills and statements . . . to

support his argument that he does regularly attend therapy and his therapist has

no concerns.”

1. Audio recording

At trial, Moreno offered an audio recording he took of a nurse during a

medical appointment with the child. The court did not admit the exhibit because

Moreno recorded the nurse without her knowledge. Lynch’s counsel added the

exhibit was not listed as an exhibit before trial. Moreno did not ask the court to

receive it as an offer of proof. On appeal, Moreno argues that the recording would

have provided the court with “a more robust picture of what would have been in

the best interests of the minor child”; “corroborated his testimony that although the

medical examination did not prove any abuse, the examination also did not

categorized evidence he wished to offer, none of which related to evidence he
argues was inappropriately excluded, Moreno never filed a formal exhibit list. The
court refused to admit many exhibits that were not itemized on an exhibit list,
explaining:
[T]here’s a difference as to what happens in a case with exhibits.
First of all, most of everything that a party offers during . . . an equity
trial, I take. The rules say that I give a different weight, but when you
don’t include it as an exhibit, [opposing counsel] is not notified of that,
you’re violating the rules of civil procedure, and I don’t take those
things.
Opposing counsel, and the court, gave him the benefit of the doubt and allowed
into evidence a plethora of exhibits that Moreno electronically filed, thus giving
some notice of their potential use. But, apparently, Moreno showed up to trial with
hundreds of additional exhibits on paper and compact discs. Our ruling on this
appeal was stalled for a significant time due to the poor maintenance of the record
and its resulting status when it was transmitted to this court, which required our
direction for correction.
10

disprove any abuse”; and “shown that [he] was only complying with law

enforcement and medical professionals’ recommendations for his concerns.”

We agree that evidence in an equity proceeding should generally be

received subject to objections. Hughes A. Bagley, Inc. v. Bagley, 463 N.W.2d 423,

426 (Iowa Ct. App. 1990). But because the exhibit is not before us, we have no

way of knowing whether it would have been helpful or harmful to Moreno’s case,

and “[w]e cannot predicate error upon speculation.” In re Est. of Hansen, 264

N.W.2d 746, 747–48 (Iowa 1978) (citation omitted). Because no request was

made that the exhibit be received as an offer of proof, error was not preserved.

See In re Marriage of Wersinger, 577 N.W.2d 866, 868 (Iowa Ct. App. 1998)

(“[W]ithout an offer of proof, there is nothing for us to review.”).

If the exhibit had been admitted, we have authority on appeal—even from

an equitable proceeding—to disregard the exhibit as inadmissible hearsay, which

it clearly was. See, e.g., In re Marriage of Hansen, No. 18-2212, 2019 WL

3714946, at *2 n.1 (Iowa Ct. App. Aug 7, 2019); In re Marriage of Williams, 449

N.W.2d 878, 881 (Iowa Ct. App. 1989). In any event, based on our review of the

remaining evidence, we cannot conclude admission of the exhibit for the purposes

that Moreno claims it was important would have affected the overarching custody

decision. See Hansen, 264 N.W.2d at 748. With no prejudice to Moreno, we affirm

on this point. See Hansen Lind Meyer, Inc. v. Shuttleworth & Ingersoll, P.C., No.

00-0808, 2002 WL 31307230, at *2 (Iowa Ct. App. Oct. 16, 2002) (“The decision

to . . . exclude evidence . . . will not be disturbed on appeal absent . . . prejudice

[to] the complaining party.”).
11

2. Sex offender registry

Turning to the exhibits concerning whether Moreno had to register as a sex

offender,5 those he referenced and included in the appendix do not appear to have

even been discussed or offered at trial at all.6 So Moreno’s complaint that “the

court did not allow for the admission of exhibits which showed that [he] did not

need to register on the sex offender registry” lacks merit and does not entitle him

to any relief on appeal.

3. Therapy records

As to Moreno’s therapy records, he offered as evidence exhibit “8BA,” which

he explained was an email from his therapist. The court responded, “So I see you

have 8B . . . from A through J.” Then Moreno explained exhibit 8BA was only

correspondence with the therapist, and the remainder (8BB–8BJ) were invoices.

The court questioned whether Lynch’s counsel objected to the admission of exhibit

8BA, counsel responded in the negative, and the court admitted the exhibit. The

5 During Moreno’s cross-examination, Moreno asserted that despite a prior
conviction for a sex offense, he did not have to register as a sex offender.
6 We note Moreno’s brief often cites “proposed exhibits,” which he also included in

the appendix. As an appellate practice pointer, the record that makes its way to
us does not include proposed exhibits that are never marked as admitted by the
district court in the judicial interface. Practitioners should refrain from citing items
that were not admitted and including them in the appendix, as they were not made
a part of the district court record and are therefore not part of the record on appeal.
See Iowa Rs. App. P. 6.801 (“Only the original documents and exhibits filed in the
district court case from which the appeal is taken, the transcript of proceedings, if
any, and a certified copy of the related docket and court calendar entries prepared
by the clerk of the district court constitute the record on appeal.”), 6.905(1)(b)
(indicating contents of appendix are limited to parts of the district court record); In
re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“[C]ounsel has
referred to matters apparently not a part of the record of this appeal. We admonish
counsel to refrain from such violations of the rules of appellate procedure. We are
limited to the record before us and any matters outside the record on appeal are
disregarded.”).
12

invoices, which were separately marked exhibits, were never offered as evidence.

Following our order directing the correction of issues with exhibits, the court

confirmed in its new exhibit maintenance order that exhibit 8BA was offered,

received, and considered. It was therefore made part of the record on appeal. To

the extent Moreno complains the email from his therapist was not admitted,

Moreno is incorrect. He is not entitled to relief on the claim the court did not admit

the invoices, as they were never offered as evidence.

B. Cross-Examination

Next, Moreno argues the “court erred in not allowing [him] to cross examine”

Lynch. In denying this claim, the court noted in its ruling on Moreno’s motion for

new trial that Moreno managed the presentation of his case and he essentially did

so inefficiently.7 As a result, the court found his claim lacked merit.

7 Most of the trial was dedicated to Moreno’s six witnesses—in comparison to
Lynch serving as the sole witness on her own behalf—and sorting out the
confusion about Moreno’s numerous unorganized exhibits—in comparison to
Lynch’s few organized exhibits. The record discloses that before trial, Moreno
agreed only one day was needed for the trial. Trial began at roughly 9:45 a.m.
Following about ten minutes of sorting out Moreno’s non-compliance with
pandemic-related protocol, Moreno was allowed to take his first three witnesses
out of order. Their testimony took about forty minutes, very little of which included
cross-examination by Lynch. Then Lynch was directly examined, which took about
an hour leading up to the lunch break. After lunch ended at 12:30 p.m., two more
of Moreno’s witness were called out of order, and their testimony ran to about
1:50 p.m., again with very little cross-examination by Lynch. Then Moreno began
his direct examination of himself, which lasted roughly ninety minutes. At the end
of his direct examination, Moreno questioned the court, “I get to question Ms.
Lynch, right?” The court stated it would proceed with Lynch’s cross-examination
of Moreno since he was already on the stand. Moreno then continued to directly
examine himself and offer a flurry of exhibits, which lasted another forty minutes,
bringing the clock to 4:03 p.m. Lynch’s cross-examination of Moreno lasted
roughly twenty-five minutes, concluding at 4:28 p.m., at which point the court
ended the trial.
13

Cross-examination is of course an important right to a litigant and an

effective aid to the factfinder in securing justice. Pickerell v. Griffith, 29 N.W.2d

588, 595 (Iowa 1947). While the extent of cross-examination is within the

discretion of the trial court, it “is a right to be jealously guarded.” Id. Outright

refusal to allow cross-examination “is a denial of an absolute right, and has been

generally held to be sufficient ground for reversal,” id. (citation omitted), so long as

prejudice resulted, Avery v. Harms Implement Co., 270 N.W.2d 646, 649 (Iowa

1978); see also In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct. App. 1998).

“Only after a party has been afforded an opportunity for full and fair cross-

examination may the trial court limit its scope.” Avery, 270 N.W.2d at 650.

But, as the supreme court has explained, “cross-examination is limited to

matters testified to in chief.” Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 520 (Iowa

2012) (quoting Avery, 270 N.W.2d at 650). Moreno complains he “could not refute

any allegations that [Lynch] made in her testimony,” and he “was not afforded an

opportunity to confront [Lynch] with her lack of attention to his concerns and her

failure to communicate and co-parent.” However, Lynch’s testimony was limited

to her background; the child’s birth and the parties’ relationship; the reasons she

sought a custody decree; her involvement in the department’s investigations; the

parties’ efforts at securing a therapist for the child; and visitation under the

temporary-matters order, which Lynch opined has “been working.” She also

testified the child loves Moreno and enjoys spending time with him. While she

provided some foundation for the department’s investigative reports, those reports

were admitted as evidence without objection from Moreno. And Lynch specifically
14

agreed the parties could not effectively communicate and co-parent with one

another—a central theme of Moreno’s case.

“A party is not denied a fair trial by the denial of the opportunity to cross-

examine a witness who does not give any testimony” on issues the party wants to

delve into on cross-examination. See id.; accord 7 Laurie Kratky Doré, Iowa

Practice Series: Evidence § 5.611:3 (Nov. 2021 update). Because Lynch did not

testify about the issues Moreno complains about on appeal, we find Moreno was

not denied an affirmative right to cross-examine her. Along the same lines, we find

that no prejudice resulted from the court’s failure to allow Moreno to cross-examine

Lynch given the other evidence in the record.

In support of his theme that the parties could not communicate with one

another, Moreno submitted hundreds of text messages between the parties, along

with dozens of videos. He also testified about this subject himself after Lynch’s

testimony concluded, along with his concerns about sexual abuse and her

response to those concerns. Moreno’s sexual-abuse concerns were thoroughly

vetted by the department and found uncredible in the reports Moreno stipulated

could come into evidence. Moreno’s lack of organization resulting from his

decision to proceed without counsel led to a large chunk of the trial being

squandered. His cross-examination of Lynch about the issues he raises on appeal

would have been further “unnecessary time consumption” and repetitive of other

evidence. See Doré, § 5.611:2. We affirm the district court on this point.

C. Legal Custody and Physical Care

Moreno next claims the court erred in placing the child in Lynch’s sole legal

custody. The factors set forth in Iowa Code section 598.41 apply to custody
15

determinations in proceedings under Iowa Code chapter 600B. See Iowa Code

§ 600B.40(2). Custody decisions turn on the child’s best interests and should

“assure the child the opportunity for the maximum continuing physical and

emotional contact with both parents” and “encourage parents to share the rights

and responsibilities of raising the child unless direct physical harm or significant

emotional harm to the child . . . is likely to result from such contact with one parent.”

Id. § 598.41(1)(a). From these principles, we have said the “legislature and

judiciary of this State have adopted a strong policy in favor of joint custody from

which courts should deviate only under the most compelling circumstances.” In re

Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). Those

compelling circumstances are present here.

We have no concerns for Lynch’s suitability as a custodian for the child.

See Iowa Code § 598.41(3)(a). But as for Moreno, we agree with the district court

that “the child has digressed in her development while in” his limited care. Though

Moreno complains no expert testimony was offered about the child’s regression,

an expert was not needed for the court to read the writing on the wall. Moreno’s

pattern of conduct—namely continuing his obsessive campaign about sexual

abuse of the child at the hands of Lynch despite repeated and consistent findings

to the contrary—shows he is willing to put his own desires over the child’s best

interests. Thus, we have serious concerns for Moreno’s suitability as a custodian.

As to the child’s psychological and emotional needs and development, see

id. § 598.41(3)(b), it is undisputed that the child loves Moreno and enjoys spending

time with him. That said, the child is young and used to Lynch serving as her

primary custodian. See id. § 598.41(3)(d). Because the child will have visitation
16

with Moreno, albeit under certain conditions, we cannot conclude she will suffer

psychologically or emotionally due to lack of contact or attention from Moreno. The

opposite instead appears to be true. Like the district court found, Moreno “created

a hostile environment focused on his misguided obsession with sexual assault,”

which harmed the child. See Knotek v. Mellin, No. 19-16000, 2020 WL 5229429,

at *8 (Iowa Ct. App. Sept. 2, 2020) (finding “continuous unfounded abuse reports

operates a significant emotional harm to these children”).

It is also undisputed that the parties’ ability to communicate with each other

about the child’s needs is strained. See id. § 598.41(3)(c). This is largely due to

Moreno’s sexual-abuse campaign against Lynch. But even after his sordid

allegations, Lynch mostly responded to him courteously and refrained from

disparaging him. See In re Marriage of Jacobson, 2018 WL 1633512, at *4 (Iowa

Ct. App. Apr. 4, 2018) (affirming decision placing a child in the father’s physical

care where despite the mother’s “outrageous conduct,” the father remained

courteous). It also does not help that Moreno appears to lack the understanding

that Lynch, who works full time, can’t respond to each of Moreno’s incessant text

messages mere moments after he sends them. Even setting up basic routine

matters about the child’s physical and mental health has been a constant tug of

war. While tension alone is not sufficient to deny joint legal custody, the parties’

inability to communicate and cooperate rises above the “usual acrimony that

accompanies” parental separation. See In re Marriage of Gensley, 777 N.W.2d

705, 715 (Iowa Ct. App. 2009) (citation omitted). The parties appear to recognize

this considering that neither asked for joint legal custody. See Iowa Code

§ 598.41(3)(g).
17

We also have concerns about the viability of a joint custody relationship in

light of Moreno’s inability to support Lynch’s relationship with the child. See id.

§ 598.41(3)(e). It is true that Lynch restricted the frequency of Moreno’s visitation

early on in the proceedings. But she did so only after she learned the details of

what Moreno put the child through to try to support his claims of abuse—the

multiple and unnecessary invasive physical examinations by medical

professionals, the surreptitious collecting of the child’s urine in a public bathroom,

and Moreno’s incessant questioning and recording of the child. Before then, she

allowed Moreno regular and unsupervised contact with their daughter. And once

the temporary order was entered, she substantially complied with its visitation

provisions. Moreno, on the other hand, has continued to try to undermine the

relationship between Lynch and the child by attempting to identify Lynch as a

sexual abuser. See Winnike, 497 N.W.2d at 174 (discussing significance of false

sexual abuse allegations made by mother in making custody determination); see

also Knotek, 2020 WL 5229429, at *8; In re Marriage of Rosenfeld, 524 N.W.2d

212, 215–16 (Iowa Ct. App. 1994). His conduct “is serious and should not be

tolerated.” Knotek, 2020 WL 522949, at *8.

The foregoing clearly and convincingly shows “that joint custody is

unreasonable and not in the best interest of the child to the extent that the legal

custodial relationship between the child and a parent should be severed.” Iowa

Code § 598.41(2)(b). So, on our review, “[w]e agree with the district court that this

is one of the rare cases where sole legal custody is appropriate and in the best

interests of the child[].” Gensley, 777 N.W.2d at 717. We accordingly affirm the
18

award of sole legal custody. As a result, we need not address the court’s award

of physical care to Lynch. See id. at n.7; see also Iowa Code § 598.41(5)(a).

Moreno relatedly requests that we “expand the sole legal custody provision

to include that he is permitted access to the child’s medical, educational, and

health records.” The decree did not specifically restrict him from having such

access. To the extent it may be interpreted as doing so, we modify the decree to

allow Moreno legal access to the child’s “medical, educational and law

enforcement records.” See Iowa Code § 598.41(1)(e).

D. Visitation

Turning to Moreno’s visitation with the child, he first complains the decree

impermissibly delegated discretion over visitation to Lynch. Assuming without

deciding that it did, the district court revisited its visitation determination in its ruling

on Moreno’s motion to reconsider, enlarge, or amend. So we start from there.

The court’s ultimate decision on visitation provided for graduated visitation.

To begin, following entry of the final ruling in mid-May 2021, Moreno was

authorized virtual contact with the child four days each week for fifteen minutes.

Beginning in July, and contingent upon Moreno providing his therapist with the

department’s investigative reports and the decree and participating in therapy, his

visitation would increase to include supervised contact every other Saturday from

10:00 a.m. to 5:00 p.m. Visits would progress to unsupervised after nine months

and expand to include every other Saturday and Sunday, conditioned upon the

child’s counselor’s recommendation and Moreno’s monthly participation in

therapy. When the child reaches school age, visits can occur in Moreno’s home
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state of Wisconsin. The decree also authorized Lynch to expand visitation as she

sees Moreno progress.

Moreno argues this visitation plan placed “onerous conditions” on his

parenting time. But while he notes the court required him to provide his therapist

with the department’s investigative assessments and the court’s decree, Moreno

makes no claim this was inappropriate. He goes on to complain “[t]he trial court

then permitted [Lynch] to have power over increasing visitation as she felt

appropriate,” based on his attendance at counseling. The problem with this claim

is that pretty much every decree involving the custody of children permissibly

allows the physical-care parent to increase visitation over the minimum ordered by

the court. Here, in its expanded ruling, the district court did not order that any

visitation be at the discretion of Lynch, which would be reversible error. See, e.g.,

Thompson v. Fowler, No. 17-0284, 2017 WL 6513973, at *2–3 (Iowa Ct. App.

Dec. 20, 2017). It instead provided graduated minimums and authorized Lynch to

exceed those minimums, which is commonplace.

Next, Moreno complains the court gave him no in-person contact with the

child until July 2021. Yet he offers no suggestion on what relief we can provide

him now. That small window of time where he was only allowed virtual visits has

come and gone and is now moot. Cf. Calcutt v. Calcutt, 320 S.E.2d 55, 59 (S.C.

Ct. App. 1984) (finding challenge to six-month waiting period before visitation could

begin moot because the period had expired and no controversy remained).

Moreno next disputes the plan for him to progress to unsupervised visits

and the amount of time he is allowed. But sometimes, like here, conditions on

visitation are justified. See In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct.
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App. 1994); see also Iowa Code § 598.41(3)(i). “Additionally, a parent may agree

to a condition on his or her visitation . . . .” Rykhoek, 525 N.W.2d at 5.

At the hearing on the motion to reconsider, Moreno argued that if the court

declined to immediately reinstate the temporary-visitation schedule (the denial of

which we agree was appropriate), the court should instead implement “a graduated

visitation schedule with the minor child through reunification efforts” that would

“allow for the child’s therapist . . . to create a reunification plan which affords Mr.

Moreno visitation time with the child as the therapist deems appropriate,” all aimed

at creating “a visitation schedule that would gradually get the parties back to the

every-other-weekend schedule that they exercised prior to this trial.” That is

essentially what the court did, so Moreno has no cause to complain now. See,

e.g., Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991) (noting a litigant “cannot

deliberately act so as to invite error and then object because the court has

accepted the invitation”); Odegard v. Gregerson, 12 N.W.2d 559, 562 (Iowa 1944);

In re Marriage of Carter, No. 18-2157, 2019 WL 3714935, at *5 (Iowa Ct. App.

Aug. 7, 2019); In re Marriage of Koster, No. 16-1583, 2017 WL 6040575, at *7

(Iowa Ct. App. Dec. 6, 2017). This also defeats Moreno’s claim that the court

“made an impermissible delegation of power to the therapist.” Cf. In re Marriage

of Schmidt, No. 13-0675, 2014 WL 2432549, at *8 (Iowa Ct. App. May 29, 2014).

Moreno specifically agreed the therapist should weigh in on the matter, so he

cannot complain now that the court imposed this condition.

While we do find some of the triggering events for Moreno’s increased

visitation to be arbitrary—like the nine-month waiting period—that period has

already passed. At this point, Moreno should be exercising unsupervised visitation
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on alternating weekends provided that “the child is progressing, there are no issues

with [Moreno’s] conduct, and the counselor makes a recommendation for

expansion of the visitation.” Either party may make application to the district court

to enforce this provision of its ruling, which we find appropriate under the

circumstances presented here. See, e.g., In re Marriage of Strong, No. 07-1085,

2008 WL 509071, at *1 (Iowa Ct. App. Feb. 27, 2008) (finding the

“therapeutic/supervised visitation provisions and subsequent reporting to the court

before additional visitation determinations are made to be appropriate”).

Lastly, Moreno raises various complaints about the alleged lack of

specificity in the district court’s orders on logistics for virtual visits, exchange

location, and visitation supervisors. We find the district court’s orders about the

former two issues sufficiently specific to guide the parties. As to supervisors, we

have no idea about the current status of visitation or arrangements the parties may

have put in place while this appeal has been pending. And Moreno does not

provide us with any specific request for relief on this point. We decline to formulate

one for him. If the selection of appropriate visitation supervisors remains an issue,

Moreno may pursue resolution of the issue in the district court.

E. Attorney Fees

Moreno finally argues the district court abused its discretion by awarding

Lynch trial attorney fees. The court may award attorney fees to a prevailing party

in a proceeding under Iowa Code chapter 600B. Iowa Code § 600B.26. We review

such an award for an abuse of discretion. See In re Marriage of Sullins, 715

N.W.2d 242, 255 (Iowa 2006). “An award of attorney’s fees is based on the parties’
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respective needs and ability to pay.” In re Marriage of O’Rourke, 547 N.W.2d 864,

867 (Iowa Ct. App. 1996).

Moreno traversed most of the proceedings and all of trial without counsel,

throughout which his disorganization and inefficiency increased Lynch’s attorney

fees. As Lynch explained in her testimony, Moreno “filed over . . . hundreds and

hundreds of exhibits, and my attorney had to take the time to go through all of

them, um, or most of them, or what he could get through. . . . I’m getting billed for

that.” The district court determined Lynch’s annual income to be $27,000 and

Moreno’s to be $70,000. On our review, we find the district court’s award to be in

line with Lynch’s need and Moreno’s ability to pay and affirm.

IV. Conclusion

We affirm on all of the evidentiary issues raised by Moreno. We also affirm

the district court’s decision to place the child in Lynch’s sole legal custody and

physical care. To the extent that the decree restricted Moreno from accessing

certain records of the child’s, we modify the decree to allow Moreno legal access

to the child’s medical, educational, and law enforcement records. We affirm the

visitation plan ordered by the district court and the award of attorney fees in favor

of Lynch. Costs on appeal are taxed to Moreno.

AFFIRMED AS MODIFIED.