Bartosz v. Jones

BARTOSZ, Plaintiff- Patrick A.

Respondent, Goodman, JONES, fka Julie

Defendant-Appellant.

No. 35091. Idaho, Court of

Supreme

Boise, September 2008 Term. 16, 2008.

Oct. Dec.

Rehearing Denied French, Boise,

Bauer & appellant. for argued. Charles B. Bauer Office, Law Nampa, respon- Tucker argued. dent. Courtnie R. Tucker JONES, permitted to move to Hawaii Julie be with Justice. J. Sydney parties continue appeals trial court’s denial Julie Jones custody, joint legal physical share modify child petition of her having during extended visitation Patrick daughter move her permit order to Sydney’s Lipetzky school Dr. based breaks. affirm. Hawaii. We his observations that Julie opinion his had birth, Sydney’s primary caregiver since been I. Sydney wanted to move to Hawaii with her met in Bartosz and Julie Jones Patrick mother, likely comply Julie was family in visiting Patrick was his visitation, 1989 when court-ordered time, in Califor- At the Patrick lived Idaho. likely able to maintain a close working a marine technician. nia as and was with her father. raising living in Boise and two Julie was Although magistrate judge considered relationship. previous children from Lipetzky’s report, Dr. he concluded that move to California Julie decided would not be in best interest there,

live Patrick. While Julie focused and, mother relocate with her to Hawaii the and Patrick served as raising on children therefore, petition modify to denied Julie’s family’s primary source of income. Pat- the custody the judge granted order. The Julie married, rick but did have a and Julie never physical custody Sydney primary long as daughter, Sydney, was together. child Their primary as remains in Idaho and Patrick she years at the of the nearly ten old time hear- custody physical if to Julie moves Hawaii. ing in this matter. sought permission to pur- Julie and obtained appeal pursuant sue a direct to this Court to Eventually, up and ended Patrick Julie Appellate Rule 12.1. Idaho couple permanently sep- back in Idaho. The began custody an in 2001 and informal arated II. Then, arrangement. Patrick discov- presented with appeal, On we are three Hawaii ered that Julie had moved to (1) magistrate whether the abused issues: petition him file a Sydney, prompted which to denying request his discretion Julie’s to custody. mag- The seeking primary physical (2) order; custody modify the whether the judge petition but istrate denied Patrick’s custody prohibiting moving order Julie from Sydney return to Idaho. ordered Julie to Sydney right to Hawaii with violates Julie’s joint judge awarded Patrick and Julie (3) travel; to and whether Patrick is entitled custody legal physical Sydney, and attorney to fees. custody. having primary physical He Julie parent from prohibited either A. Canyon of Ada or Sydney’s residence outside days’ giving sixty Counties without notice. Standard Review Child are determinations May Patrick learned that Julie to of the committed the sound discretion to wanted to move back Hawaii McGriff, magistrate judge. petition modify original to so he filed McGriff (2004). 111, 114 Idaho On order, asking the court again appeal, will overturn this Court custody. primary physical him award Julie for an decision abuse discre move to Hawaii because her wanted to back Roberts, Roberts v. Idaho tion. husband, Jones, an officer in the new David (2003). Army, had transferred there. U.S. been Jul- counterpetition and re- ie filed an answer B. modify the initial questing that the court her move to Ha- permit order Magistrate His Did Not Abuse Dis- Sydney. waii with by Denying Request cretion Julie’s Custody Modify the Order study eval- The trial court ordered home argument magis- uation, by Dr. Li- which was conducted Joe Julie bases her decision an abuse of discretion petzky. Lipetzky Dr. recommended that trate’s (1) magistrate interrelationship failed to and grounds: three interaction whether a siblings; consider factors relevant to custo- child with his her and parent adjusted should be allowed to move with a child dial extent the has his or child; (2) school, home, magistrate community; applied presump- and the cir physical against separation persons tion of a child cumstances and character of the in (3) volved; parent; mag- promote continuity and a non-custodial the need to life; stability findings istrate made several conclusions child’s and domestic vio supported § that were evidence. lence. This 32-717(l)(a)-(g). I.C. list of mandatory

factors is not exhaustive or courts are free consider other factors that may Nelson, be relevant. Nelson v. Magistrate Factors Rele- Considered Idaho vant Whether a Custodial Parent however, must, Courts account take into Ida Should Permitted to Relocate With ho’s presumption that it is in child’s best a Child frequent continuing interest to maintain argues that the failed to parents, contact with both one unless consider factors that are relevant deter- an perpetrator habitual of domestic vio mining whether should be also, § §§ lence. I.C. 32-717B. Id. See 32- able to with a relocate child. She maintains 1007, 18-4506; Hopper Hopper, Idaho that the factors outlined in Idaho Code sec- 624, 627, 167 provide guidance tion 32-717 insufficient cases, deciding trial courts relocation which When a move would violate exist “incomplete results in an consideration of the ing custody arrangement, parent seeking the apply evidence” and causes pre- courts a permission to relocate with child has the the sumption against relocation. proving burden of that the is in relocation Idaho, Roberts, In the child’s best the interest is best interest of the child. 138 paramount importance 405, of in child Idaho at 64 P.3d at 331. The factors Hoskinson, decisions. Hoskinson v. 139 Ida enumerated in section provide guid 32-717 (2003). 448, 455, 1049, ho 80 P.3d 1056 in determining relocating Ac ance whether is in cordingly, 404, governs the best interest a standard child’s best interest. Id. 64 at P.3d at 330; Weiland, regarding child 124-25, decisions where a will reside. see also 139 at Idaho Roberts, 404-05, Idaho Roberts, 138 at 64 P.3d at 75 330- P.3d at In a custody 178-79. 31; see Ruppel, agreement also Wetland v. 139 Idaho provided that the mother would 122, (2003). 124-25, 176, 75 P.3d primary physical 178-79 have custody of the chil dren, set forth in standard is Idaho Code section but restricted her residence to Cassia 32-717, provides Roberts, may, which that “court and Minidoka Counties. 138 Idaho judgment, give 403, before after such at di 64 P.3d at 329. The mother later custody, rection petitioned for the care and education of to have the decree modified to may the ... necessary permit children as seem or her to relocate with the children to proper in the best interests of the Ada County. children.”1 Id. The denied the 32-717(1). § gives I.C. petition The statute trial mother’s to relocate and ordered making courts in wide discretion that custody de would be transferred to the terminations, requires but it them to consider if up children’s father she Id. In moved. all evaluating decision, relevant factors when holding magistrate’s the best we noted Id.; interest of the child. see Hoskin that the factors enumerated in section 32-717 son, 455, 139 at Idaho 80 P.3d at 1056. in Rele have relevance determining whether the may parents’ vant factors include the wishes children could relocate with their mother. wishes; for custody; the child’s the child’s Id. at 64 P.3d at 330. Because trial terms, By not, applies its section 32-717 situations where a child's are been, Weiland, actions for divorce and to of the "children mar- have not married. See 139 Idaho however, riage,” specific gov- because no criteria 177; Hart, at at 75 P.3d State v. children, ern orders for non-marital we 721, 723, 725, 1253 approved application have of section 32-717

455 argument, making In her she 32-717 factors Idaho.” considered section court children, cases, scholarly relies of of the articles most relating to the best interests presumption support not which favor of relo- petition of the to relocate was its denial propose specific cation.3 Julie does not of an abuse discretion. but, light of the she standard authorities may consider factors enu Courts on, appears asking relies she is us to that deciding 32-717 when section merated adopt it is presumption in a child’s Roberts, permit relocation. whether best interest relocate factors magistrate also considered used position parent. contrary This to Idaho York courts to deter and New California law, requires moving parent which in the the relocation was best mine whether prove in the that relocation is child’s best Roberts, 138 Idaho interests of the children. Roberts, Idaho at P.3d interest. 138 64 405, 64 at 331. The factors included at at 331. child’s with his or the extent of the contact authority only other on in relies parents’ motives for relocat parents; arguing for a more definite standard is a relocation; impact the opposing ing or case, Supreme Florida Court which held on the would have child’s move good parent a custodial who has faith reasons parent and extended with the noncustodial ordinarily relocating permitted should move en family; and the extent the Mize, Mize v. move. So.2d economic, emotional, and edu hance (Fla.1993). noted, in that court case well-being the custodial cational however, that trial courts should still consid- Marriage In re Bur and the child. See er as extent will factors such the move Cal.Rptr.2d gess, 13 Cal.4th improve quality of life of the (1996); Tropea Matter child; move; the motive for the the extent Tropea, 87 N.Y.S.2d N.Y.2d arrangements will be alternative visitation appeal, up we N.E.2d On followed; will the extent substitute visitation consideration such held continuing relationship enable a between Roberts, guide his factors decision. parent; child and the other the costs 331. We reasoned Idaho the best of the transportation; and interest virtually there is no Idaho “[b]ecause child.4 Id. at 419-20. directly the court not point” trial did law considering in California and New York err Although specifically does not reaching in its conclusion.2 Id. law adopt that this Florida advocate Court the Mize, Julie, Supreme in asks According approach the terms of Ida- Court’s she “bare [sjection of pronounce insufficient us to similar set move-related provide ho Code 32-717” making trial when de guidance for trial courts relocation factors for courts consider above, ciding As discussed decisions and “the articulation of standards relocation cases. approved of trial eon- appropriate is and this has courts in relocation cases needed Court However, (2006). rejected approach case also in The Oklahoma Julie cites 2. we the taken recognized parent's presumptive Burgess Tropea, placed which a custodial and the burden on Kaiser, right parent why relocation to relocate with the child. Kaiser the non-custodial show 282, Roberts, 278, (Okla.2001). decision not allowed. 138 Idaho at 23 P.3d should be was based on an Oklahoma statute that entitled 64 P.3d at 331. parent custody unless with of a child relocate “prejudice rights it or of the the welfare that a 3. One of the articles concludes 282; Id. at also title child.” see child, Okla. Stat. "parent able to with the should be relocate (1991). § there is no in Ida Because statute except that in unusual circumstances” and usual- relocation, creating presumption ho in favor of ly the "the child's best interests will favor move." unpersuasive. this is case Tanke, Tony J. To See Judith S. Wallerstein & Legal Psychological and Move or to Move: Not decided, had a the Children Fol- 4.At the time Florida Considerations in Relocation Mize of Divorce, lowing L.Q. Code statute similar Idaho section 32-717B 30 Fam. Similarly, argues presumption article that it in a that established a another is primary share of their children and best interest to relocate with the should child's Bruch, continuing "frequent caregiver. and S. Sound children should have See Carol Research Custody parents. Thinking with both See Fla. in Child Cases? contact” or Wishful Stat. 61.13(2)(b) (1989). Law, § L.Q. 40 Fam. Lessons Relocation from joint sidering presumed factors in addition to is that an of move-related award in section 32-717. See the factors set forth § serves child’s best interest.5 I.C. 32- Roberts, 64 P.3d 138 Idaho (4) 717B(1), may & A par- court award may already fac- Since trial court consider joint physical custody, joint legal ents custo- recognized by Florida tors such as those the 32-717B(l). dy, § both. An of award Court, Supreme particularly would not be it joint physical custody must assure that the helpful laundry to enunciate a for this Court “frequent continuing child has contact could or should consid- list of factors that be parents,” with both but this “does not neces- case. in type Factors relevant ered this sarily parent mean the child’s time each may be relocation cases irrelevant some exactly in length should the nor same framework, and, the current under others necessarily does it the mean child should be are free consider factors trial courts alternating peri- back and over certain forth unique to each case. parent.” ods time between each I.C. event, any magistrate this 32-717B(2). § recognized We have that: case considered factors mak move-related ing considering his decision. In addition to is unusual [i]t courts of Idaho factors, magistrate the section 32-717 grant right one to have child move, considered motive for the Julie’s during for one or two months Syd extent alternative visitation would allow year given while the other custo- ney and Patrick maintain a relation close dy for the remaining year months of the ship, impact the move on ... where the welfare best interest Patrick, visitation the effect require the child this. Sydney’s relationship move on ex Koester, 654, 657, family. Only considering Koester v. tended after all of 99 Idaho (1978) these factors did conclude (quoting Nielsen v. in Sydney’s that would not be best interest Nielsen, 87 Idaho Accordingly, magis to move to Hawaii. (1964)) (internal omitted); 626-27 citations by failing trate did not err to consider factors Hart, 721, 725-26, see State v. 142 Idaho relevant to relocation. (2006) (noting 1253-54 upheld “this has giving Court court decisions primary custody parent during to one Magistrate Apply Did Not an Irrebutt- year directing school a different schedule Presumption Against Physi- able months”); during King, King summer Separation cal of a Child a Non- (2002) custodial Parent (upholding magistrate’s grant decision to fa- argues Julie that this Court’s have cases eighty percent physical custody ther presumption against created a virtual reloca- twenty percent physical custody). mother It tion. argues magistrate She also that the province is the of the trial court to determine by applying erred an presump- irrebuttable spends the amount of child time the with against physical separation tion the a child 32-717B(2). parent. § each I.C. parent. a Finally, non-custodial she ar- gues magistrate that the abused his discre- presumption joint favor of by overemphasizing tion mov- motive for custody equivalent is not to a presumption ing. against a parent relocating awith above, child. As discussed the best interest

a. governs of the child standard relocation deci Impose Roberts, Idaho Does 404, Law Not See sions. 138 Idaho at 64 P.3d Presumption Against a Ford, 330; 443, at see also Ford v. 108 Idaho Relocation parent P.2d 67 700 Once the law, seeking permission proves to relocate that Under parent Idaho unless one is a violence, perpetrator interest, habitual it domestic relocation is the best child’s he or presumption may pre- 32-717B(4). ponderance § 5. The a be overcome I.C. the evidence.

457 relating as a move with the child. al move with the child factor to be allowed to she will Roberts, P.3d at 64 at 331. 138 Idaho interest than as a the child’s best rather that determinative condition foreclosed Nonetheless, argues that this custody the Id. at award mother. “strong pre created a cases have Court’s decision, reaching 173 P.3d at 1147. In our any refers against relocation.” She sumption grounds on that distinguished Hopper we the Roberts, Hopper Hopper, v. specifically prevented in that case the mother’s move (2007), Navarro 144 Idaho establishing a with father from Yonkers, P.3d Idaho Schultz, a the child. Id. In mother fled to Schultz, (2007), and Schultz Oregon being physically child after with her P.3d 1234 Julie’s characteriza Schultz, abused child’s father. the law in Idaho is incorrect. As tion of above, apply a Roberts does discussed Idaho at 187 P.3d at The father relocation, against only re presumption magistrate, later filed for divorce seeking that to relocate quires relying Hopper, ordered the mother to prove the move the child that is appeal, to Idaho. Id. we return the child On Roberts, 138 Idaho at child’s best interest. after concluding reversed the trial court at P.3d by failing the court abused its discretion Similarly, of the other cases Julie none consider the best interest the child and against presumption create a relocation. cites for its Id. at elaborate basis decision. actually Only required case she relies on one 862-63, explained at 1237-38. We Hopper, in Idaho. a a child to remain Hopper did not remove a secretly to Montana with her mother moved making custody discretion in child determi- obtained fraudulent domestic vio- son and nations and that the best interest of the child against protection order father. lence paramount deciding remains whether Hopper, 144 at at 762. Idaho a child parent must return to Idaho. Id. filed a motion for subsequently The father 866, 187 at 1241. The fact that a custo- magistrate temporary custody, which the de- dial relocates outside of Idaho with Instead, magistrate Id. awarded nied. only child is one factor consider when permit- the mother temporary deciding in the interest. what is child’s best stay child. her to in Montana ted 865,187 Id. at P.3d at 1240. appeal, magistrate we held that Id. On by failing require the mother to erred make Idaho These cases clear that during the child return to Idaho against impose presumption law does not Id. 167 P.3d at 764. proceedings. contrary, when consid relocation. On reasoned the mother should not We together, they proposition stand for the ered evidentiary benefits associated receive that a must consider all factors thereby having custody of the child child’s best when relevant to the interest rewarded her unlawful conduct. making parent’s A determination. that it remanded the case so could be We move is one factor be considered underlying legal with the and social “decided Navarro, custody. awarding when See that it the best interests of a principle [in] Schultz, 888, 1147; at P.3d at 145 Idaho 173 continuing relationship to have a child Moreover, 865, at Idaho 187 P.3d 1240. parents.” both upheld cases have decisions several Idaho a other Julie cites indicate that cases allowing parents to relocate parent’s move is one factor courts to See, e.g., Biggers Biggers, their children. making when determina- consider 692, (1982); 698 103 Idaho Navarro, moved tions. In a mother to Neva- Koester, 586 Koester v. informing without da with child Merrill, (1978); Merrill father, which the father filed child’s after (1961); Idaho Navarro, custody. petition for Idaho Milliron, Milliron v. Idaho 884,173 upheld magis- P.3d at We (Ct.App.1989). The common mother’s unilater- P.2d trate’s decision to treat the presumption against position theme is not a reloca- magistrate applied lies her that the tion, rather, but deference to the trial court.6 an presumption against irrebuttable reloca-

tion. b. A magistrate’s custody decision Magistrate Apply upheld will if Did it is not an Not abuse of discre Presumption Against tion supported by and is substantial and com Wetland, petent evidence. See Relocation 139 Idaho at 124, 75 P.3d at A trial court acts within argues magistrate er “recognizes its discretion if it the issue as one roneously applied presump an irrebuttable discretion; acts within the outer limits of against tion relocation. She contends that consistently its discretion and legal with the guided by his ultimate conclusion was his applicable standards available findings adequate that ‘“there is no substi choicest;] and reaches its through decision an frequent physical tute for time’ between a Roberts, exercise of reason.” 138 Idaho at “Sydney’s and child” and that best hand, 64 P.3d at 329. On the other require frequent interests that she retain trial court abuses its discretion when it regular parents.” contact with both of her makes a award or modification based Julie, According findings these indicate on evidence that is insufficient to conclude “physical that the trial court assumed that that the award is in the child’s best interest. proximity requirement joint of Idaho’s Nelson, Nelson v. 144 Idaho at custody law.” overemphasis at 378. An any single on fac Upon examination opinion, of the entire it Schultz, tor is also an abuse of discretion. magistrate is clear that apply did not 863,187 145 Idaho at P.3d at 1238. presumption against relocation. While the Here, magistrate did not abuse magistrate could have chosen his words more his by concluding discretion that Julie should precisely law, accurately reflect the a re- permitted not be to move to Hawaii with view opinion of the entire indicates that the First, Sydney. magistrate recognized play statements did not a determinative role the issue before him as one of In discretion. in magistrate’s magistrate decision. The findings his of fact and conclusions of law he considered all of the section 32-717 factors “recognizes stated that he deciding and additional factors relevant to relocation. presented issues requires this case He also took into account section 32-717B’s Second, [c]ourt to exercise its[ ] discretion.” presumption joint favor of magistrate acted within the limits of his frequent continuing contact between discretion and in accord applicable legal both light and the child. of the In concluding standards. to Ha findings, extensive we are un- waii Sydney’s interest, would not be in best able to applied conclude that he an irrebutta- he considered all of the factors listed ble presumption against relocation.

section 32-717 and other factors he deemed Third, relevant. magistrate reached his c. through decision exercise reason. He Magistrate Did Not Abuse His applied the relevant factors to the evidence by Overemphasizing Discretion him weighed before the factors to reach Any Single Factor magistrate his decision. The concluded that Although she explicitly did not raise the several factors staying favored issue, appears to be Julie’s contention that Specifically, Idaho. adjust level of placed emphasis home, too much school, ment to her community; her decision to move. This contention under- the character and circumstances of all indi- Further, Roberts, 6. exception with the of the had been entered. This case involves a by cases cited Julie involved a different issue seeking modify existing custody order to currently than the Hopper, one before the Court. and, reason, permit relocation for that is more Navarro, and all dealt with a Schultz akin to Roberts. relocating with a child before a order supported law that were not conclusions of involved; promote and the need victuals Julie chal- Sydney’s by Specifically, life all evidence. stability in continuity and findings relating the other magistrate’s On against lenges relocation. weighed factors 32-717 hand, only of the section Patrick’s one her interference with Sydney moving of weigh in favor Sydney. tended rela- Namely, analyzing with Julie. child and her

tionship between a. magistrate concluded siblings, the and likely and emo- psychologically Sydney was Findings Magistrate’s of Fact Were status as due to Julie’s tionally closer Julie by Supported and Substantial caregiver. Sydney’s primary Competent Evidence magistrate’s say that This is not completely free magistrate’s of the factors several of the weighing Julie contests Particularly, the court’s focus problems. relating interference with findings to her somewhat motive on Julie’s relationship with Patrick. She dis- Sydney’s deci- judge stated that Julie’s troubling. The findings that she putes magistrate’s “self-serving with marry David was sion away from Pat- “clandestinely” moved twice Sydney impact on and regard to the little rick, whereabouts from Pat- concealed her Further, he father.” relationship with her rick, help her conceal engaged others to and an “end run” around decision as regarded the Patrick. Julie contests the her location from moving. against her previous restriction his findings negative has a magistrate’s that she unsup- magistrate are findings by the These relationship with toward attitude sought permis- by Julie ported the evidence. Patrick, relationship, support their does not her hus- in order to live with to move sion impact a move is not concerned with suggesting There is no evidence band. relationship. on their to Hawaii would have the intent of David with married Julie magistrate’s related disputes the She also relationship with thwarting Patrick’s findings that has denied Patrick’s re- she to Hawaii.7 solely she could move or so Sydney, not quests time with has for extra whole, Nonetheless, viewed as a when Pat- Sydney’s school information with shared an abuse of decision was not magistrate’s rick, negative in a portrayed Patrick and has magis- Although some of the discretion. light. placing be construed as findings could trate’s motive for mov- emphasis much on Julie’s too findings of fact magistrate’s A findings part were ing, these supported by sub they if are upheld will be of one factor. consideration magistrate’s competent evidence and are stantial the relevant magistrate considered all of Reed, 137 Idaho clearly Reed v. erroneous. lengthy in a factual engaged factors Evidence magistrate made such analysis. Because trier of fact “if a reasonable is substantial findings and the abuse discretion extensive it in determin accept rely it and upon deferential, magistrate’s very standard is disputed point of fact has been ing whether a discre- the limits of his was within decision King King, 137 Idaho at proven.” law, tion, applicable consistent view the evi appeal, 457. On we P.3d at through of reason. an exercise reached judgment the trial court’s in favor of dence findings uphold will conflicting evidence. if there is fact even Findings Magistrate’s of Fact Nelson, Nelson v. Law Were and Conclusions will not Additionally, this Court at 378. Supported the Evidence replace credibility determinations make by reweigh findings of fact trial court’s trial court abused its argues that the ing the evidence. making findings of fact and discretion assignment time at the Further, of David's next presented location evidence indi- there was no engaged. they became aware of the cating and David were that Julie magistrate’s findings relating Sydney, findings to with were based on attempts Syd prior Julie’s to interfere with competent substantial and evidence. The ney’s relationship supported Patrick with are magistrate reasonably could have concluded by competent evidence. substantial and prior that Julie’s pat- moves demonstrated a magistrate making findings, the relied on his Syd- tern of interference with Patrick’s and made with the children with two moves Julie ney’s relationship. Patrick. informing out first The first move Similarly, there is substantial compe- 1998,8 in Julie left Patrick in was when Cali support magistrate’s tent evidence to the children to fornia and moved with Texas. findings regarding negative Julie’s attitude occurred in The second move 2004 when toward Patrick relationship Syd- and his with in exchange pro Julie decided to enroll ney. Patrick testified that there were times gram through University, State in Boise that Sydney Julie would not allow him to see spend

which she intended semester during his visitation hours and that Julie studying in In neither Hawaii. instance did normally not permit additional visita- plan to Julie discuss her move with Patrick Additionally, tion. nega- Julie made several arrange for visitation between Patrick and tive references about Patrick to the court Sydney. Lipetzky. and to Dr. Julie referred to Pat- supports magis- Julie’s move to Texas controlling rick as emotionally abusive. findings. points trate’s Julie out that Patrick She also stated that Patrick never had knew about and her in assisted her move to positive relationship with her two older chil- Texas, which demonstrates that the move dren, drank Sydney and drove with in the Testimony not was clandestine. elicited from car, verbally abusive, was physically support both Julie and Patrick at trial Julie’s abused her older children. Patrick admitted Nonetheless, assertion.9 the move could still that disciplining he believed in a child pattern be viewed as evidence Julie’s however, spanking, magistrate concluded interfering relationship with Patrick’s that Patrick’s actions did not rise to the level Sydney. Patrick did not find out about Jul- of abuse. allegations None of the other were planned ie’s until move he arrived at their substantiated testimony. credible house and discovered she had removed family’s personal belongings. most Julie, Based on his interactions with Dr. Moreover, move, considering Lipetzky also concluded neg- that Julie has a necessarily court’s focus on its secre- ative Lipetzky attitude toward Patrick. Dr. prior tive nature but on “Julie’s current and noted that lengths attempt “Julie went to Sydney effort to away move from Patrick.” parent” to show as an unfit Pat[rick] and that Julie’s move to sup- Hawaii 2004 also positive she minimized the aspects of Pat- ports magistrate’s findings. The evi- relationship rick’s with the children. Julie dence before the court indicated that Julie Sydney report also instructed her “fear of did not inform Patrick that she was [Patrick]” her interview Lipetzky. with Dr. Hawaii, Sydney that David refused to reasons, Lipetzky For these Dr. concluded were, tell Patrick Sydney where Julie and likely Patrick would “be more to foster a that Patrick private investigator had to hire a positive relationship Sydney between Sydney, to locate Julie and and that it took than Julie” Julie would between Patrick and him over two months to find them in Hawaii. Sydney. presented Because support the facts findings secretly Although conflicting there is evidence that

moved with suggests Hawaii and that the that Julie has at sup- times been move relationship interfered with Patrick’s portive Syd- Patrick’s point opinion, 8. At one in his approve 9. Patrick testified that he did not but, indicated that Julie’s move Julie moved to Texas to Texas but that he had "discussed [with point, her] before she left.” Patrick also testi- another he stated she moved in 1999. frequently fied that he visited Julie and the chil- Syd- The record indicates that Julie moved when money every dren in Texas and that he sent them old, ney was nine months which was in 1998. month.

461 of and to reside the state their not abuse his dis- state magistrate did ney,10 the Helms, 412, 418, interfered concluding that Julie v. 452 U.S. choice.12 Jones cretion negative had a 2439, 118, 2434, their 124 69 L.Ed.2d 101 S.Ct. toward Patrick. attitude (1981). right to travel contains three judge credibility of position to in the best right a citizen primary guarantees: of conflicting evi- weigh witnesses state, travel to another from one state to a presented for Enough evidence was dence. equal treated to citizens of anoth right to be findings mind to make the same reasonable taking up in that upon state residence er magistrate. as the state, temporarily right of travelers and the regarded to be as welcome visitors. a state C. Roe, 489, 500, 526 119 S.Ct. Saenz v. U.S. Custody Magistrate’s Does Not Order 1525, 689, 1518, 702 143 L.Ed.2d Right Travel Violate Julie’s Generally, penalizing a citizen for state action the citi leaving entering a state violates pre- argues that order Jones, 419, Syd- moving to Hawaii with 452 at venting right her from zen’s to travel. U.S. she is right 2440, to travel because ney violates at 69 L.Ed.2d at 125. State 101 S.Ct. main- parent. She also Sydney’s custodial travelling laws that deter citizens from of the child stan- that the best interest tains right. Attorney New implicate the Gen. of compelling government interest not a dard is 898, 903, Soto-Lopez, v. 476 U.S. 106 York right justify a restriction on her sufficient to 899, 905 2317, 2321, 90 S.Ct. L.Ed.2d from other She cites decisions to travel. Nonetheless, may a state restrict citizen’s adopted that stance11 that have state courts jurisdiction doing so right to leave the when urges this Court to do likewise. necessary compelling govern serve Shapiro Thompson, v. 394 ment interest. States Constitution The United 634, 1322,1331, 618, 22 89 L.Ed.2d U.S. S.Ct. right of United protects the fundamental 600, (1969), grounds freely 615 overruled on other travel from state to citizens to States to overcome a about interest standard was sufficient that she informed Patrick Julie testified concerts, programs, deny party’s request and other school Sydney's parent’s a third decision Syd- gave copies visitation, Patrick redacted enough events. She ney’s report not with whether it was Sydney to Patrick’s cards and sent parent’s rights. See Ride limit another out, visitation papers. bag containing Additional- school C.A.M.A., 301; Parentage 109 761 A.2d at him to ly, that Julie contacted Patrick testified 498; 413; Mizrahi, at see also at 867 A.2d day school participate in a career Granville, 57, 73-74, 120 S.Ct. v. 530 U.S. Troxel spend sometimes allowed and that she 2054, 2064-2065, 49, (2000) 147 L.Ed.2d 61-62 also showed The evidence extra time him. (plurality). grant- a court order that Julie has never violated ing The instances Patrick formal visitation. the Fifth and Due Process Clauses of 12.The did interfere with Patrick’s visitation where Julie Amendments are often considered Fourteenth place. was in before a order occurred Jones, guarantee. 452 U.S. at the 418-19, of this sources Riendeau, 291, A.2d 2439-40, Rideout v. 761 11. Julie cites at 124- 101 S.Ct. at 69 L.Ed.2d (Me.2000) (holding interest of that the best However, precise provision establishing compelling government not a inter- the child was disagree right to travel has been a matter of interfering parent’s right justified with a est 418, 2439, id. at 101 S.Ct. at ment. See or her child and control of his to granting 124; California, Edwards v. 314 U.S. L.Ed.2d visitation); Parentage grandparent In re 172-73, 164, 166-67, 119, 160, 62 S.Ct. 86 L.Ed. 405, C.A.M.A., 154 Wash.2d (1941) (relying on the Commerce Clause 124 - 25 Cannon, (2005) (similar); 375 N.J.Su- Mizrahi migra restricting statute interstate to invalidate (2005) (holding that per. 867 A.2d Edwards, tion); 62 S.Ct. 314 U.S. seeking child over grandparents visitation with J., (Douglas, concurring) 86 L.Ed. objection the child parent’s must demonstrate (concluding Privileges that the and Immunities and that show- harmed without visitation will be protects Amendment Clause of the Fourteenth ing the child’s best interest is visitation is in travel); right Attorney Gen. New York parent’s decision to insufficient to overcome Soto-Lopez, 106 S.Ct. 476 U.S. visitation). partic- are Those cases withhold ularly (1986) (noting that L.Ed.2d here, however, they since did not relevant concepts right travel been attributed to has justi- standard decide whether the best interest federalism). right parent’s to travel. on a fied Moreover, restriction whether the best the cases dealt with Jordan, 651, by Although absolutely 415 94 pro- Edelman v. U.S. S.Ct. the order does not 1347, Hawaii, 39 L.Ed.2d 662 hibit Julie from it deters exercising right by

her from her to travel taking away her status as if she moves. It also forces her to Custody Implicates The Order constitutionally protect- choose between two Right to Travel Julie’s rights: right ed her right to travel and her forcing a State action citizen to impli- raise her child.13 Because order exercising choose between his or her funda travel, right cates Julie’s it must serve a right and another constitu mental to travel compelling government interest to be valid. tionally right right protected violates the justified by compelling travel it is a unless Blumstein, Dunn v. 405 U.S. state interest. Right The Restriction on Julie’s to Trav- 1003, 330, 342, 995, 274, 31 92 S.Ct. L.Ed.2d Necessary Compelling el is to Serve a (1972). Dunn, 284 In Tennessee had enacted Government Interest requirement residency pro a durational that argues that the best interest of the unless, voting hibited new residents from compelling govern- child standard is not a election, they the time of the had been resi justifies ment restricting interest her year. 331, dents of the state for one Id. at right to disagree. travel. We 997, 92 S.Ct. at 31 L.Ed.2d at 278. Several challenged new the law unconsti residents as a. 331-32, tutional in a action suit. at class 997-98, 92 S.Ct. at 31 L.Ed.2d at 278-79. Ensuring Sydney’s Best Interest is Supreme Court held that the law was Compelling Government unconstitutional and violated the new resi Interest 360, right dents’ Id. at to travel. 92 S.Ct. at Idaho Appeals Court of has 1012,31 L.Ed.2d at 294. The Court conclud protecting ruled that the best interest of a ed that the law forced citizens to choose compelling government child is a interest. right between their basic to vote and their 527, Ziegler Ziegler, 107 Idaho 691 P.2d right and, therefore, to travel valid curiam). (Ct.App.1985) 773 (per Ziegler, In if necessary it was compelling to serve a challenged mother a child award government 342, interest. Id. at 92 S.Ct. at granting primary physical custody and 1003, 31 L.Ed.2d at 284. Because the law requiring the children to live within a 100 necessary was not to serve the state’s inter 533, mile radius of Coeur d’Alene. Id. at preventing est in voter fraud and because P.2d at argued 779. The mother less restrictive means existed to further the residency restriction right violated her goal, state’s the Court concluded the statute primary travel physical custody since she had 346, 353, was unconstitutional. Id. at of the children. Appeals Id. The Court of 1005, 1008, S.Ct. 31 L.Ed.2d at 286. upheld residency restriction on the ground justified decision to transfer that it was compelling interest, if government to Patrick Julie moves namely, ensuring the implicates right Hawaii 534, Julie’s to travel. best interests of the children.14 Id. at recognized saiy 13. This Court has that the necessary Fourteenth and that interference is not unless guarantees parent's Amendment parent poses fundamental fleeing a risk of with the children. right "custody, to the care and Ziegler control of his or misleading. This characterization of Leavitt, her child.” See Leavitt v. 142 Idaho Ziegler requires necessary interference when (2006) (quoting 132 In re Ziegler, serve the child's best interest. Bush, 873, 875, 749 P.2d Appeals, quoting opin- Court of the lower court's (1988)); Granville, ion, see also Troxelv. 530 U.S. stated "the best interest of the children dic- 120 S.Ct. love, 147 L.Ed.2d they support, tates that should have the guidance companionship par- of both their assuring opportuni- ents ... and the maximum argues Ziegler only requires 14. Julie [receiving compelling interfer- ties for those is a benefits] parent's right ence with a Ziegler, to travel when neces- state interest.” 107 Idaho at residency that the 100 mile restriction Ruppel, 139 eluded In Weiland 691 P.2d at 780. (2003), overly Ziegler, was not broad. 107 Idaho at this Court Idaho challenge P.2d at 781. The court reasoned rejecting a similar Ziegler cited granted a that the order did not restrict the mother’s custody award that a child right to travel outside the 100 mile zone for long as she remained as mother temporary purposes at 179. We did such as vacation Idaho. See id. Moreover, holding the mother could or business. Id. expressly adopt the rationale not by giving up the area proper it was for still move outside Ziegler, but noted that parent’s primary custody of the children. Id. The weigh trial court to the the only required in fact that order the mother against the child’s interest right to travel the court’s authorization before mov- maintaining relationship with the other to seek a ing completely prohibit not her from Id. did parent. relocating important. Id. Because the one before us Relocation cases such as way was the restrictive the order least between two require us to strike balance interests, ensuring the children’s it best did important, yet conflicting, constitu- equally right to Id. not violate mother’s travel. permitted were to rights. tional If Julie Sydney, Patrick would to Hawaii with move Here, magistrate because the con care, custody, right to the deprived of his Sydney’s it in cluded that is not best interest is no reason control of his child. There Hawaii, custody to to move order is right to travel why Julie’s constitutional necessary compelling government to serve automatically trump Patrick’s consti- should There is no less restrictive alterna interest. Similarly, right to raise his child. tutional government’s objective. to achieve the tive Sydney right should not Patrick’s to raise magistrate’s only option other right automatically outweigh Julie’s to travel. custody grant primary have been Accordingly, we hold that the best interest of in Al Sydney and force her to live Idaho. appropriate child standard is the most undoubtedly though it would be a difficult parents’ competing con- way fairly balance make, choice for Julie to at least under the rights in cases and is a relocation stitutional custody can current order she either move to government interest. In this compelling give up primary custody Syd Hawaii and case, that it was determined ney stay custody. or Idaho and retain to move to not in best interest Further, like the child order Zie Hawaii, compel- provides the state which gler, the order in this case does not restricting right ling for Julie’s reason temporarily leaving Idaho prohibit Julie from travel. trips. can go on vacation or business She temporary depar even take on these

b. tures, doing interfere provided so does not reasons, with Patrick’s visitation. For these Custody Necessary Order is to Serve necessary order is to serve a Compelling Interest Government government interest and does not compelling necessary residency restriction is A right to travel. violate Julie’s government interest compelling to serve way to achieve the least restrictive when D. Dunn, objective. 405 U.S. government’s Attorney Fees at 284. 92 S.Ct. at 31 L.Ed.2d requests Patrick an award of attor Supreme Court has held The United States 12- ney pursuant sections applies means test fees to Idaho Code that the least restrictive See, 12-121 and Idaho Rule of Civil Proce right travel. 120 & on the to restrictions 54(e)(1). brought 342-43, 1003-04, argues that Julie 31 dure He e.g., 92 S.Ct. at unreasonably, with appeal frivolously, or Assuming, not decid at 284-85. but L.Ed.2d However, presented Patrick ap foundation. means test out ing, that the least restrictive authority support his re- Ziegler argument Appeals con- no plied, the Court analysis. part parents’ flight of the best interest at 780. The risk was and, therefore, quest away of fees we If a for award chooses to move from See, Parrish, deny request. e.g., his Davis v. residing, parent may where the child is frequent physical custody be able to have (1998) (declining respondent’s to address re- example, King King, of the child. For attorney quest an award of fees because mother, for father, and the child resided support request argu- she failed County, in Jefferson Idaho. The mother authority). ment or from chose move there to the state of

Michigan. action, In ensuing divorce granted physical custody father was of the III. eighty percent child for of the time petition denial of Julie’s granted physical custody mother was for request attorney is affirmed. Patrick’s twenty percent. responding to the moth- fees is denied. Costs awarded to Patrick. challenge physical er’s to the division of cus- tody, obvious, case, we stated the “In this Justices BURDICK and concur. HORTON Melissa chose to move from Idaho to Michi- EISMANN, gan. practical concurring Chief The effect Justice in of her move is to the result. limit spend the amount of time that she can Megan.” with 137 Idaho at majority I concur in opinion cannot Conversely, permitting parent disregards public policy because de- away move with a typically prevent child will by § clared Idaho Code 32-717B. parent having frequent physi- the other from Obviously, cal of the child. if there pre- § A. Idaho Code 32-717B creates a presumption joint is a in custody, favor of sumption parent permit- that a not be presumption then there against allowing away doing ted to move with a child if parent away one to move with if the child the prevent parent so would the other prevent move would parent the other from having frequent continuing from and having frequent continuing physical and cus- physical custody of the child. tody of the child. To hold otherwise would 32-717B(4) declares, § Idaho Code “[A]b- statutory render presumption meaning- preponderance sent of the evidence to the less. contrary, presumption there shall be a that joint custody is in the best interests of a statutory presumption upon is based custody’ minor child or children.” “‘Joint legislature’s determination that it is in awarding custody means an order of the parents the best interests of a child for both parents provid- minor child ... to both frequent continuing physical to have cus- ing physical custody by shall be shared tody pre- of the child. To overcome that parents way such a as to assure the sumption, parent wishing away to move frequent child ... of continuing contact with prove the child must that it is in the parents.” King King, both v. 137 Idaho child’s best parent interests for the other not (2002) (citation frequent continuing physical have cus- omitted). requires Joint tody parent of the child. A can decide that parent physical custody each signifi- have for things parent’s other in the life are more 32-717B(2). periods cant § of time. I.C. important maintaining than a close relation- child, ship 32-717B(4) away. with the and move

Section presumption creates a prevent parent court cannot doing from that it is in the so. best interests of a child that not, parent however, parents permit- both should frequent physical custody have be Typically, away the child.15 ted to move simply order for that to the child be- occur, able to parent the child will have to be cause the concludes other living in physical proximity parents. things to both important his or her life are more 32-717B(5). presumption 15. The apply § does if one of the violence. I.C. perpetrator is a habitual of domestic ability parent’s grounds the other to maintain a such children and is for than modifica- relationship respect with the child. tion of the decree with to such custody. guarded against past This has in the Court 73 Idaho at 245 P.2d at 814. actions that would interfere with the relation ship parent and child. In between Wei Giving presumption effect to the created Ruppel, 139 Idaho 75 P.3d 176 land by § Idaho Code 32-717B is consistent with (2003), upheld we the trial court’s refusal to prior preventing parent our decisions one Portland, permit a mother to move to Ore interfering from relationship with the be- gon, parties’ child because of the tween the other and their child or impact adverse such a move would have on purpose presumption children. The of the father, relationship the child’s with his who promote Section 32-717B is to the best inter- resided in Idaho. The trial court had con assuring par- ests the child that both impact upon cluded that “the adverse [the opportunity ents have the frequent to have relationship child’s] with his father will out continuing physical custody of their child weigh any potential might he benefits receive significant periods periods time. Such mother’s relocation to virtue of his Port physical custody are develop essential to Idaho at land.” 139 and maintain a close with the Hopper Hopper, child. One should not be able to (2007), surreptitiously a mother moved relationship by interfere with that seeking to parties’ with the five-month-old to Mon child alienate the child parent, towards the other subsequent In by tana. divorce action filed by preventing parent the other having from father, permitted the trial court child, by contact with the moving away or child, mother to remain in Montana with the prevent with the child if it would the other ultimately primary physical and awarded her having frequent from continuing custody. This Court vacated the physical custody any of the child. In decree, stating, “The mother should have circumstances, those the result is the same. been ordered to return the child to Idaho acting contrary One is to the best might rights where the father exercise his as by preventing interests of the child the child equal parent and have this case decided developing having healthy from rela- underlying legal principle with the and social case, tionship parent. with the In other this that it is the best interests of a child to statutory pre- Julie failed to overcome the continuing relationship par have both sumption that it was in best inter- ents.” Idaho at 167 P.3d at 764. In physical custody ests to be in the of Patrick Thurman, Thurman v. frequent periods for of time. (1952), P.2d 810 this Court reversed an order changing custody upon to the father based B. The Constitution of United States findings appeal this Court’s that the fa Require Does Not that Jones Be Per- ther had alienated the children from the Away mitted Move with the Parties’ so, doing mother. this Court stated: Child. The best welfare of minor children is right Julie contends that her constitutional

promoted by having respect such children infringed required to travel will be if she is parents. and love both This is natural and parties’ daughter leave the behind when she every effort should be directed to the end to Hawaii. moves More than her constitu that such respect and affection will not be rights tional are at issue this ease. The destroyed alienated; any other course liberty protected by interests the United is not in the interest of and for the best States Constitution include “the interest of welfare of such minor children..... care, custody, in the and control of Granville,

The acts and conduct of the custodial their children.” Troxel v. 57, 66, 120 2054, 2060, parent, resulting in the alienation of the U.S. S.Ct. 147 L.Ed.2d naturally love and affection which children Parents have a fundamental care, parent, right concerning have for the other vital and “to make decisions very custody, serious detriment to the welfare of their control of children.” Id. travel, may try than it out indi- right to Julie seeks to benefits fence her To exercise gents generally.” Id. at of his constitutional stat- 89 S.Ct. deprive Patrick Obviously, care and of his 22 L.Ed.2d at 613. if the utory rights to the indigents” could not “fence out it could daughter. state they ar- also not force them to leave after activi engage various Our freedoms right free to travel into rived. Their to be not to do so. the freedom ties also include in- the state would be hollow unless it also religion includes the The freedom to exercise right leaving coerced cluded a not to be into Supreme do so. As the Court freedom not to the state. Weisman, 505 U.S. stated Lee v. L.Ed.2d S.Ct. right Julie contends to travel will (1992) (citation omitted), that coerce “[L]aws infringed if cannot move to Hawaii she ‘support participate in nonadherents Sydney. permitted If Julie is to move exercise,’ virtually any religion or its daughter, to Hawaii with their Patrick would right religious violate their definition in order for him to have move Hawaii speech The freedom of free exercise.” frequent physical custody Sydney, have government telling peo from “prohibits the infringing right his constitutional not to trav- they say,” ple what must Forum rights el. Julie’s constitutional are not more Rumsfeld Rights, 547 Academic and Institutional important than Patrick’s constitutional 1297, 1308, 164 47, 61, 126 L.Ed.2d U.S. Therefore, S.Ct. rights. deciding factor must (2006), government and from the child, applying be the best interests of the “forc[ing] speaker one to host or accommo presumption created Idaho Code message.” speaker’s date another Id. at 32-717B(4). § 164 L.Ed.2d at 173. 126 S.Ct. reasons, I For the above concur in the press right freedom of includes the not to l'esult. print. responsible press “A is an undoubted ly press responsibility goal, but desirable Justice W. JONES concurs. the Constitution and like mandated many legislated.” it cannot be other virtues Tornillo, v.

Miami Herald Pub. Co. 418 U.S. 2831, 2839, 94 S.Ct. 41 L.Ed.2d “[fjreedom Likewise, of associa presupposes a plainly

tion ... freedom not to Jaycees, v.

associate.” Roberts U.S. 468 U.S. 609, 623, 3244, 3252, S.Ct. L.Ed.2d 197 P.3d 327

462, Idaho, Plaintiff-Respondent, STATE Shapiro Thompson, 394 U.S. 22 L.Ed.2d S.Ct. (1969), Supreme the United States Court REYNOLDS, Eric A. Defendant- stated that our “the nature of Federal Union Appellant. concepts personal and our constitutional No. 34399. liberty require unite to that all citizens be throughout length free to travel Appeals Court of of Idaho. statutes, breadth of our land uninhibited July rules, regulations unreasonably which bur- den or Shapiro restrict this movement.” Review Denied Oct. one-year residency require- struck down a becoming eligible ment before for welfare indigents

benefits in order to deter from solely larger to the state to obtain stated,

benefits. As the Court “More funda-

mentally, may try a State no more to fence indigents higher

out those who seek welfare

Case Details

Case Name: Bartosz v. Jones

Court Name: Idaho Supreme Court

Date Published: Oct 16, 2008

Citation: 197 P.3d 310

Docket Number: 35091

Court Abbreviation: Idaho