Opinion
No. 1-558 / 00-1813.
Filed January 28, 2002.
Appeal from the Iowa District Court for Cedar County, NANCY S. TABOR, Judge.
Father contends defendant mother should be required to participate in his relationship with the parties' daughter. AFFIRMED.
Tracey Allen McGhghy, Pekin, Illinois, pro se.
Brian T. Fairfield of Norton Norton, P.C., Lowden, for appellee.
Considered by HABHAB, PETERSON, and HARRIS, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Plaintiff, Tracy Allen McGhghy, in this pro se action seeks to compel association with a minor daughter, whom he also lists as a plaintiff. McGhghy, incarcerated in Illinois on a drug offense, asserts the association is a natural and constitutional right that has been thwarted by the defendant mother of the child. McGhghy complains that he and his daughter have been deprived of "their inherent rights of services, associations, companionship, society, and love and affection toward one another." The remedy sought is to compel the defendant mother to participate in counseling and for an order compelling all parties to submit to mediation and family counseling. The action was dismissed on alternative grounds, including a holding that it could not stand without a prior, favorable, judicial determination of custody and visitation rights. The holding was correct, and we affirm the dismissal.
Although McGhghy protests our doing so, we judicially note a prior action between the parties involving issues of visitation, custody, child support and name change for the child. McGhghy v. Thumann, No. 99-0566 (Iowa Ct. App. Nov. 8, 2000). In that case we affirmed the district court ruling, which granted the mother sole legal custody of the child and denied visitation by McGhghy. McGhghy understands his present claim to be independent from, and unaffected by, the custody and visitation matter resolved in the parties' prior case.
McGhghy denies the present suit is a claim for alienation for affections, which the trial court correctly noted is not recognized in Iowa. Wheeler v. Luhman, 305 N.W.2d 466, 467 (Iowa 1981) (abrogating remedy when claim is by a parent of a minor child); Fundermann v. Mickelson, 304 N.W.2d 790, 791 (Iowa 1981) (abrogating remedy in case involving husband and wife). We cannot, however, accept the distinction he would draw between his present suit and the issues already resolved in the prior one. His loss of services, companionship, society, and consequent love and affection with regard to his minor daughter could only stem from the matters disposed of in the prior case in which custody of the child was placed with her mother, and in which McGhghy was denied visitation. He cannot now collaterally revisit these issues by a separate suit, even though he labels the same claims differently, the natural right of a biological father. If he is contending his natural rights of custody and control over his child cannot be impaired by the state or its courts, such a contention is contrary to fundamental law. See 59 Am. Jur. 2d Parent and Child § 11, at 143-44 (1987).
If his present suit is to be considered, as McGhghy insists it cannot be, a suit for alienation of affections, it is barred by the cases we have cited. If it is not an alienation suit, it is barred by his failure to prevail in the prior litigation. The district court was correct in so holding.
AFFIRMED.