*1 273 Likewise, only was we are that easily concluded that not convinced defendant court probability but that competent representation. there not a reasonable had Defendant alleged court attorney’s errors the for the prov- to meet of has failed either his burden verdict, see would have reached different trial ing attorney that his breached an essen- Hildebrant, 839, 405 841 State v. duty prejudiced by tial or that he was his (Iowa 1987); Washington, v. 466 Strickland result, attorney’s representation. As a 694, 2052, 2068, 668, 80 104 S.Ct. U.S. judgment affirm the trial overruling court’s (1984), 674, but that there was L.Ed.2d 698 motion for trial. defendant’s a new attorney’s certainty that trial absolute Disposition. Upon limited IV. our re- alleged did not affect the verdict.2 errors sufficiency of defendant’s view of evi- conclusion, the trial court stated: making this claim, we dence conclude that substantial that there think there was—that don’t supports conviction evidence defendant’s of any judge jury or that would first-degree burglary in violation of Iowa not that the defendant is the one conclude Also, upon sections 713.1 Code and 713.3. those that committed offenses.... de novo review of ineffective our his assis- claim, tance of counsel that we conclude point at the matter of If I look from holding court did not err in trial defen- facts, I can being the trier of the view of representation received at dant effective tri- certainty absolute that none state with of al. therefore trial We affirm the court’s presented has at which been evidence judgments convicting of the sever- defendant postconviction hearing on motions this overruling al enumerated offenses and his any made would have difference motion for a new trial. were verdicts which reached. AFFIRMED. [Also, reviewing] it point from the upon ... the effect some other view of fact, [a]gain, finder of
hypothetical ... there is no reasonable finds probability any this evidence would in a verdict be- have resulted different In re the David MARRIAGE OF just really did cause it not tend to cast Allen KLEIST and Adriana upon the facts which were decisive doubt Hilda Mendez. in this the verdict case. Upon the Petition of trial court sum the concluded: Kleist, Appellant, Allen prove defendant failed to [T]he Concerning And to perform Mr. failed an essen- Stenander service, representation tial that his was not Mendez, Appellee. Adriana Hilda competency. within the normal realm of No. 94-25. presentation also finds that [The] [c]ourt presented which has at the evidence been Supreme of Iowa. Court hearing on not have motions would any probability changing had reasonable 20, Sept. 1995. verdict. 25, Rehearing 1995. Denied Oct. the defen-
The court convinced that competent a fair
dant received trial with
counsel in this case.
prejudice prong
dispose
duty
we have
the breach of
and the
We realize that
both
2.
if the
test
because the trial court addressed
ineffective assistance
counsel claim
prongs
alleges
he
prong
does
defendant fails to meet either
of the inef-
both
defendant
Strickland,
prove prejudice
his conflict of
of counsel
See
not have to
fective assistance
test.
Duncan,
435 N.W.2d
S.Ct.
L.Ed.2d at
interest claims. See State v.
384,
U.S. at
at
(Iowa
700;
App.1988).
Hepperle,
Lori L. Klockau and Daniel L. Iowa City, appellee.
NEUMAN, Justice. marriage
This dissolution of action is be- split fore us on further review from a deci- appeals. sion in the court of That court custody ruling reversed a that would have given parties’ the mother care of the daughter. The reversal stemmed from the appeals’ court of view that district court gave weight strongly undue to the mother’s mary granted was liberal visita- beliefs, effectively care. David leading it to held cultural regularly exercised. which he has long tion years” doctrine “tender reinstate by this court. ago abandoned court, and now Both before framed much of appeal, have to conclude leads us novo review Our de the cultural differences their debate around *3 gen- of the child—not best interest that the simultaneously animated and that have stereotyping cultural der or —motivated David, family who is this unit. stressed therefore, We, vacate court’s decree. district bred, prides himself on Minnesota born and affirm the appeals decision and court of consistency in even-tempered nature and his district court. judgment of the Adriana, who was relationships with others. Havana, Cuba, until and lived there born Background. I. immigrating States with her to the United respondent David Kleist and Petitioner ten, family age admits that she is more at City in Iowa were married Mendez Adriana Evidently “easily to emotion.” their aroused pursuing a David was then 1988. June worst, marriage amplified the rather has working counseling degree in while graduate best, personality features. than the of these hospi- university psychiatric at the part-time witnesses tend to de- Thus David and his profes- a tenured associate Adriana was tal. volatile and erratic. Adri- scribe Adriana as in the universi- appointments with dual sor emotionally cold and ana views David as Spanish and literature and ty’s comparative believes the other unsupportive. Neither their departments. Soon after Portuguese day-to-day provide kind of nurtur- degree David earned his masters marriage, ing Juliana needs. family a position full-time as secured a and strong Hispanic link heri- to her child, Kleist- Juliana therapist. Their young it a belief that tage also carries with Mendez, 1989. was born November children, pri- girls, should be the especially accounts, is, exceptional by all Juliana mary responsibility of their mother. She healthy, bright as child. is described She as “sacred.” Her describes motherhood her intellectually advanced for energetic, regard is so fixed opinion this trial) (three and well at the time age losing primary care of Juliana prospect of every way. bilingual, is a adjusted in She anxious than David openly her more made David’s from Adriana with skill learned custody-evaluation process. about the clearly by her support. adored strong She Fredericks, experi- Dr. Marilee words of emotion- and demonstrates no closer parents David) (selected by psychologist enced one. al attachment to either court, for performed the evaluation aged far just who were both is “so David and a “visited” idea of trial, adjusted forty-two the time of have that it would ser- at lexicon” [Adriana’s] outside possi- relationship whenever with Juliana. professional iously disrupt schedules her their hand, parent- desiring to David, time available for while to maximize the the other ble caretaker, arranged appears for a sabbatical ca- ing. primary be Juliana’s birth and nursed Dr. Fredericks fulfilling time of Juliana’s role. pable around the either meanwhile, David, training as nearly year. flexibility a her credited this rearing job requires him to equally therapist, to child a family contributed continuity Adriana has occasion- in a relation- housekeeping duties. pick up and maintain accompany her ally arranged for Juliana ship. lecturing or trips when she is
on out-of-town testimony parties of the Having heard the doing research. witnesses, having personally and their trial, days the dis- them four marriage observed parties’ deterioration custody joint trict court decided necessarily equal and somewhat altered would serve caretaker primary A sharing care. contest unique of Juliana’s “enhance best interest Juliana’s In December her ensued. over par- of both and contribution overall access temporary order court entered par- to her the child this child and pri- ents to in Adriana’s placed gave argu- three reasons for its We first ents.” The address the “overall fitness” (1) Perhaps conclusion: that Adriana would be much ment. the most remarkable feature in the role of visited opinion less effective this record is the unanimous every objective including than in the role of caretaker because observer — parenting of her and “to some extent” court and the court of both of —that deepseated about the of a exceedingly capable beliefs role are and lov- (2) mother; sig- ing parents. meaningful Adriana’s work schedule is No differences exist nificantly distinguish more flexible than David’s and to them terms of their relative provide significant periods would allow her to abilities to serve as Juliana’s care- (3) Juliana; very of time for Juliana was taker. The stress of this marital breakdown temporary inevitably comfortable with the care ar- party’s taken its toll on each rangement opinion then effect. The court also of and with the other. *4 divided the marital assets and denied Adria- But suggest there is no evidence to that request permission been, na’s for to long-term take Juliana Juliana’s well or country be, with her outside the for adversely by extended will affected Adriana’s occa- periods on or volatility tendency while sabbatical other academic sional or David’s to be by pursuits. appeal This overeontrolling David and cross- or distant.
appeal by Adriana followed.
Nor
suggest
does the record
that either
party would fail
ongoing
to foster Juliana’s
Appeal.
II.
Issues on
relationship with
parent.
the noncustodial
challenges
David
the custodial and
reject outright
We
suggestion
decree,
provisions
economic
while Ad
early request
custody
Adriana’s
for “sole”
riana contests the court’s restriction on her
automatically
should
disqualify her. The rec-
ability
accompany
to have Juliana
her on
plain
ord makes
custody
she favors
extended academic travel. As in all cases
principle
and harbors doubts about
its
issues,
involving such
our review is de novo suitability
only
parties’
here
because of the
and our
consideration is the best
breakdown in communication. Her fears are
Guardianship
interest of the child. In re
groundless.
of not
And in no event should she
Knell,
(Iowa 1995).
778,
537 N.W.2d
Pri-
penalized merely
expressing
for
them.
value,
precedential
or
cases are
little
ex
Indeed we are troubled
the lack of
cept
provide
analysis,
to
framework for
cooperative spirit
demonstrated
David
ultimately
we must
tailor our decision to the
during the course of
proceedings.
these
Fol-
unique facts and circumstances before us.
lowing
temporary custody order,
the court’s
Will,
Marriage
In re
489 N.W.2d
example,
David refused to vacate the
(Iowa 1992).
mind,
principles
With these
marital residence. After three weeks of es-
parties’
turn
we
contentions.
tension,
calating
compelled
Adriana felt
to
Custody.
A.
David
uproot
only
believes that the
Juliana from the
home she had
plainly
record
establishes him as the
ever
preserve
peace.
known
order to
long-term
after,
best able to minister to Juliana’s
Soon
knowledge,
and without Adriana’s
best
likely
interests as well as the one most
began lengthy
visits with Juliana at
promote meaningful
to
preschool
days,
contact with the other
on his nonvisitation
a situa-
(1995);
§
See Iowa Code
598.41
ultimately
disruptive by pre-
tion
deemed
Winter,
re
personnel
166 school
and discontinued at Adria-
(Iowa 1974) (factors bearing
custody
Next,
request.
deci na’s
Adriana had to secure
sion).
by considering
injunction
He also contends that
prevent
to
taking
David from
professed
Juliana,
old,
Adriana’s
aversion to
years
the role of
then three
to meet his
parent,
“visited”
“improperly
lawyer
the trial court
Finally, dispute
at her
office.
arose
years’ presump
reintroduce[d] the ‘tender
up-
over Juliana’s medical treatment. The
through psychological
tion’
and cultural ra
shot of it was that Adriana directed medical
argument
tionalizations.”
It
personnel
is this latter
to consult her for all treatment
convinced a
authority (except
emergency)
divided court
in reso- —a
custody
reverse the trial court’s
applauded by
pediatrician
award.
lution
Juliana’s
permitted,
all,
that not
who testified
was Juliana basi-
if at
impact
cally healthy
appropriately
hand,
treated in
decision.
On the one
entirely
preferable,
appeals’
but that it was
in with the court of
expressed view
disagreeing parents,
person’s
case of
for one to
“we cannot let a
have
cultural beliefs
say.
put him
superior
the final
or her in a
position when
we assess the
issue.”
interpreted
conduct David
This
could be
time,
At the same
we do not believe
attempt
as an
to undermine Adriana’s court-
a court
ignore
way
should
in which a
earetaking authority. Viewing
ordered
person’s background shapes their attitude
whole, however,
record as a
we believe that
parenting.
litigant
toward
If a
held a fixed
quite capable
David —as well as Adriana —is
genetic
cultural belief that
superiority
fostering ongoing
communication about
boys
greater
entitled them
opportunity
parties’
responsibility
mutual
towards Ju-
girls,
than
example,
surely
we con-
liana.
sider such
placement
a factor in the
of a
party’s
Given each
undifferentiated
here,
child. Likewise
Adriana’s beliefs
and,
work,
to care for Juliana
with some
translate into a
parenting style.
distinctive
long-term
foster
with the Neither
origin
belief,
the ethnic
of such a
nor
other, the district court’s decision to focus on
it,
the fact
that she holds
controlling.
who would best fill the role of noncustodial or
important
What is
impact
is the
of that belief
*5
important.
“visited”
becomes
It was
on her
role as
Fredericks,
analysis by
drawn into this
Dr.
The record reveals that Adriana harbors
sought
that,
to make a recommendation
genuine doubt that a woman can fulfill the
words,
in
“represents
her
the best combina-
mothering role outside
caretaking
the
con-
parental strengths.”
tion of
Placing Juliana
parenting style
text. Her
heavily
relies
on
in Adriana’s
with liberal visita-
close verbal
alternating between
interaction —
custodian,
joint
tion David as
Dr. Freder-
English
Spanish
and
small continuous
—and
testified,
icks
disruptive
would be the least
nurturing
guidance
Although
activities.
arrangement
likely
and the one most
in-
to
adjust
she could learn to
her
to accom-
ongoing
sure Juliana’s
contact with both her
role,
adjustment
modate a noncustodial
the
parents.
opinion
The same
was voiced
particularly
for her would be
difficult.
It
objective witnesses,
other two
Julia-
would,
opinion,
in Dr.
longer
Fredericks’
take
preschool
preschool
na’s
teacher and the
ad-
parents.
unhappiness
than for most
Her
in
persons
ministrator. Both these
had ob-
meantime,
opined,
Dr. Fredericks
would
family’s
daily
served the
interaction almost
likely
in
unrelenting
manifest itself
solici-
two-year period.
over a
expressions
loyalty
tation of
of love and
from
complained
court,
in the trial
Juliana, ultimately leading to an intense and
argues
appeal,
approach
that such an
conflictual
that would have diffi-
unfairly penalizes him
flexibility
for his
culty surviving. Such an outcome would
culturally-based
rewards Adriana for her
in
clearly
not be
Juliana’s best interest.
transigence.
custody decisions,
Child
howev
accepting
do not believe that
Dr.
We
er, are not
punishment.
matters of reward or
Fredericks’ candid assessment of the situa
Bowen,
Marriage
In re
219 N.W.2d
tion either exalts one culture over another or
(Iowa 1974). Responding
question
years”
reinstates the “tender
doctrine. Cf.
“fairness,”
Dr. Fredericks stated that her
Bowen,
(abandoning pref
has had the benefit asks, effect, rights that David’s re parties firsthand. visitation should on occasion be subordi- (Iowa 1984). Vrban, 420, 423 359 N.W.2d accompa- nated to her desire to have Juliana ignore ny trips country. cannot the other two rea- We also her on extended outside the favoring given by court, trial court for sons it Like the district we do not believe primary caretaker. As a necessarily Adriana as the in Juliana’s best interest to do so. teacher, is much more Adriana’s schedule interpret from the court’s decision its We David’s, giving her more time to flexible than tacit belief that such extended travel would spend Perhaps impor- most unduly with Juliana. right regular interfere with David’s tant, If, is comfortable and settled frequent daughter. Juliana contact with his present surroundings. compelling No reason past, as in the can placement appears disrupt Juliana, which has they such travel benefit then nearly years. now extended three We there- may arrangements they make such grant of They fore affirm the district court’s encouraged thoughtfully choose. are in Adriana care vested weigh experiences of such merits and liberal visitation as outlined case-by-case on a basis. court’s decree. respects, judg- In this and all other ment of district is affirmed. Property par
B. settlement. primarily ties’ marital assets consisted COURT OF APPEALS DECISION VA- equity pension plans. home and individual CATED; DISTRICT COURT JUDGMENT Adriana’s financial contributions to the fami AFFIRMED ON APPEAL AND CROSS- *6 ly outweighed unit far David’s. The district APPEAL.
court fashioned division that took account disparity recognizing equal of this while the McGIVERIN, justices except All concur contribution made the toward C.J., LARSON, LAVORATO, and rearing housekeeping. child The divi SNELL, JJ., who dissent.
sion, challenged inequitable by David on McGIVERIN, (dissenting). Chief Justice appeal, entirety was affirmed in its respectfully I dissent. appeals. court of The matter was not raised party either on further review. Like the parent, fighting issue here is which appeals, court of we find the division of mari Mendez, David Kleist or Adriana should be property equitable judg tal and affirm the physical year awarded the of their five care ment of the district court. daughter, old Juliana. physical I C. Extended visitation. The record would award the care of Juliana reasons, Adriana, father, David, reveals that as a scholar in Latin to her for several studies, Accordingly, American I would affirm is often invited to lecture which follow. decision, appeals gave which outside the United States. She also antici the court of pates physical sabbaticals devoted to research and reverse district Spain judgment and Latin ac as to that issue and related America. Juliana has companied past trips. support. her in the on such visitation and child agree Both Adriana and David seem to that Custody In child cus I. considerations. traveling intellectually this could be benefi cases, tody governing the first and consider cial to her. the child. Iowa ation is the best interest of 14(f)(15). RApp.P. section 598.41 posttrial Pursuant to a motion under Iowa Iowa Code 179(b), weigh in factors for courts to decid Rule of Civil Procedure lists nine ing of the child. grant request asked the trial court to what is the best interest Furthermore, courts consider factors we out she be allowed to take Juliana with her Winter, 223 This is partly In re text. due to her in- lined in of (Iowa 1974), 165, 166-67 grained/deep-seated before mak that a mother doubts primary mothering care decisions. can role outside ing difficult fulfill caretaking partly context due to her joint the trial award of agree I with court’s heavily parenting which relies on on- parents. See custody of the child both going interactions and small continuous 598.41(2). However, signif- § it is Iowa Code nurturing guidance are activities which level, that at trial icant to note integrated with those interactions. and wanted sole custo- opposed See id. dy of Juliana herself. 598.41(3)(g). § mother, heritage, is Cuban is a United States and has been in citizen physical court’s award care. II. Trial country years. for 34 this claims an She question we must ask is who shall The next properly ethnic view she cannot function primary physical caretaker of Juliana? be the as a mother to Juliana has the unless she issue, difficult the trial court stat- On this physical care of Juliana. ed: substance, the investigator, Dr. Freder- ... finds should The Court that [Adriana] icks, court honored that ethnic primary physical awarded the care and thus physical belief awarded the care of This Court’s decision Juliana.... mother, Adriana. The award physical care to Adriana is award supposedly was made in the interest of best any perceived deficiencies not the result child, Juliana, otherwise Adriana because in David’s It is obvious might effectively not be able contribute from the evidence that David is an excel- support to emotional the child as a “visited lent with much to Juliana. offer i.e., parent,” the child would However, I in- [an share Dr. Fredericks’ visit. vestigator’s] view that inter- Juliana’s best placed impermissible if I believe that was consid- ests will be served she is I primary physical of her mother. eration. the court of care respect issue: place- Dr. Fredericks’ decision on this the cul- share view “We us, litigants ment of care with Adriana will tural differences before parent’s overall we cannot let a cultural beliefs enhance the access and contribu- but in a parents put superior position him or her when tion of both to this child and parents. appears to we assess the issue.” child to her It *7 Fredericks, Court, it did to as Dr. Also, parent’s disposition” is not a “cultural Adriana Mendez would be much less effec- factors listed section one of the in Iowa Code tive in the role visited [non-custodial] deciding what 598.41 to be considered when parent primary care- than role of interest child. is the best of the parenting taker. This because her unwillingness III. Adriana’s to be an deep-seated and to some her extent emotionally-supportive, noncustodial about the role a mother. beliefs essence, Adriana will not In asserts that she play emotionally-supportive role Julia- report trial court relied way by being not get life if she does her na’s Fredericks, Dr. investigator, Marilee physical care An analo- awarded of Juliana. stated: gy to Adriana’s assertion can be drawn physical arrangement monetary support care refuses to parent pay who
[T]he disruptive par- parent would be most of Juliana’s for the child unless the is awarded the placement physical be care or visitation with desired ent/ehild parent care with have said noncustodial of that Mr. Kleist. This is be- child. We cause, my opinion monetary despite support that Ms. owes Mendez nevertheless caretaking personal disappointment of despite can fulfill the role of child The same parent, I doubt her to serve as an not caretaker. apply parent com should to Adriana here principle the visited effective 280 Quirkr-Edwards, sup- will withdraw emotional not
indicates she should is awarded port physical solely for the child unless she rewarded with care on one of sum, In it physical care. is no more valid to purported dispositions. cultural background the cultural and conditional allow Also, Court, in Amro v. Iowa District 429 support emotional of Adriana to be consid- (Iowa 1988), N.W.2d 135 did not reward a regarding physical award of care ered strong father who had cultural beliefs and than to excuse a noncustodial from panel wanted a of Islamic scholars rather paying monetary support. court-ordered custody dispute than a court to decide a over Here, the trial court and Dr. Freder- both son. at his Id. 137-38. penalized precluded from icks be- physical The trial court’s award of care ing physical they caretaker because be- part disposi- based in on Adriana’s cultural enough lieved he was mature to be able untold, precedent tion bad sets unfortu- parent, function as noncustodial whereas Every parent desiring nate ramifications. capable Adriana was not so and mature. physical care could assert a like-claim. years” Reintroduction IV. “tender concerning VI.Relevant evidence presumption. any pre We have abandoned physical putting care award. After aside the sumption having phys in favor of the mother impermissible mentioned consideration con- ical care of a small child. In re beliefs, cerning Adriana’s ethnic other rele- (Iowa 1974). Bowen, N.W.2d bearing physical vant factors on the award of physical believe court’s award of care must be considered. purported care to based on her inability parent,” improperly to be a “visited shows, The record and the trial court stat- years” presumption reintroduces the “tender ed, that David anis excellent father and has through cultural rationalizations. addi consistently much to offer Juliana. He cared tion, testimony and the other record for together Juliana while the lived supports appeals finding the court of that if apparently aggressively has never acted David, physical granted in care is favor of in front of her. exposure Juliana will be assured the cul contrast, the record reflects Adriana tural values of both her father and mother. past. exhibited violent tendencies in the Everist, Lambert v. Cf. (Iowa 1988) (father Dr. Fredericks testified at trial: primary physi awarded One of the concerns Mr. Kleist has daughter part cal care because the volatility had is about her vo- [Adriana]’s daughter’s exposure father viewed his to oth — latility, potential perhaps angry lifestyles positive, er cultures and whereas outbursts, potential perhaps intimi- daughter’s exposure mother wished to limit dating hurting way. or Juliana in some lifestyle). mother’s you norms, apply When that is a cul- substance, adopt, We should not a rule [P]erhaps Hispanic tural feature.... pliable parent that the more should have that normally women are volatile.... against trait held him or her on *8 physical Dr. expert care matters. Fredericks then testified: “I’m no testimony on [Adriana’s] culture.” This is involving personal V. Other cases beliefs. consistent well-documented instances of eases, In at least two we decided not to angry, by violent outbursts Adriana in front obstinately reward a who refused to of Juliana within the home. allow visitation or physically possess did not allegedly the child. In Adriana’s actions have been so Cf. Quirk-Edwards, re 509 N.W.2d extreme at times that David filed domestic (Iowa 476, 1993) wife, (holding charges against who wil- abuse her November 1992. fully sought deprive petition, chap- noncustodial father In his filed under Iowa Code 236, rights, from decreed visitation longer alleged was no ter he was “imminent child). deserving physical danger physical protective care of the Just harm if a order as we did not sought reward the mother who vacate homestead is not issued to cut off all ties of charge the father from his child case.” The record does not show this Although vigorously de- In custody, was tried. al Juliana will abuse, allegations nied of domestic she ad- exposure be assured to the cultural values tendency mits she has a to over-react and of both her father and mother. this is due to cultural differences and claims I would affirm the court of deci- divergent family values. physical sion as to the property divi- According to consid- “[b]ehavior sion, and all other issues. The district country socially ered abusive in this ... judgment court’s would be reversed accord- acceptable Hispanic culture as a means to ingly. grievances pent-up anger.” ah’ channel addition, engage Adriana admits she must justices McGIVERIN, All except concur techniques
in “various meditation to curb C.J., joined by LARSON, LAVORATO, and propensity away in-born [her] be carried SNELL, JJ. with her emotions.” Dr. Fredericks also concluded Adriana had tendencies toward
suspiciousness, hostility, irritability, feeling angry
mistreated and and resentful. volatility should not be reward-
ed. stated,
As before there is no evidence suggest any
the record to David exhibits negative RESTAURANT, LTD., character traits Appellant, exhibited KABE’S Adriana. v. personality profile tests administered KINTNER, Appellee. D. Richard by Dr. Fredericks to Adriana revealed: “Her responses tendency are consistent awith to- KINTNER, Appellant, Richard D. suspiciousness, feeling ward toward mistreat- v. resentful, angry tendency ed and and a hostile, irritable, easily to be hurt.” HALL, Appellee. F. John I do not feel it would be in Juliana’s best No. 93-1514. interest for Adriana’s characteristics Supreme Court of Iowa. perpetuated making caretaker. Sept. 1995. VII. Juliana’s At characteristics. Rehearing Denied Oct. 1995. trial, testimony time of revealed Juliana’s development social and emotional was above
age expectancy. She was also characterized court, however, a “de-
manding controlling girl.” little These generally
latter character traits are more disposition
consistent with Adriana’s than I physical custody
David’s. feel
with Adriana would exacerbate Juliana’s
demanding controlling character traits
and would not be in Juliana’s best interest. summary,
VIII. Conclusion.
with the court of that stated:
Juliana’s interest will be better served in care. David has the ma-
turity understanding to foster her re-
lationship despite with Adriana
professed resistance to a noncustodi-