*1 those assertions opinion, cussed to withstand been sufficient
should have judgment, under summary
the motion for Therefore, it is Mexico law.
existing New necessary remove this case from
summary calendar. reverse the foregoing, we
Based on the and remand summary judgment
grant of proceedings.
for further
IT IS SO ORDERED. JJ., MINZNER, concur.
ALARID and (Jaramillo) MURPHY,
Kim Marie
Petitioner-Appellee/Cross-Appellant, JARAMILLO,
Francisco Filimon
Respondent-Appellant/Cross-Appellee. 11755.
No. Appeals of New Mexico.
Court 5, 1990.
June
changed circumstances and what inwas interests; (5) the child’s best as a matter of fact, both law and the child would not suffer moving adverse effects from out of mother; (6) state with the child should by plane not travel alone until she was eight years age. appeal presents
This issues of first im- pression in New Mexico. We reverse and remand, concluding (1) that the trial court: misapplied favoring a sole custodian’s to relocate to the facts of and, result, (2) this case as a improperly shifted the burden of to father to show a of circum- stances and what was in the child’s best interests.
FACTS
parties
The
were
divorced
1987. Un-
(the
der a
plan
plan), they as-
joint legal custody
sumed
of their minor
daughter.
plan
The
sharing
called for
physical custody of
specif-
the child under a
providing periods
ic formula
of residence
parents.
with both
specifically provided
It
parties] agree
cus-
“[the
tody of
shall be shared in the
[the child]
following manner:
...
shall re-
Greenfield,
[the child]
Cruces,
pe-
Charlotte
Las
for
week,
during
side with
ex-
[mother]
titioner-appellee/cross-appellant.
cept during
periods
of time she resides
Beverly
Singleman, Stephen
J.
A. Hu-
[father],
as outlined ... below.”
bert,
Hernandez, P.A.,
Hubert &
Las Cruc-
specified
then
es,
respondent-appellant/cross-appellee.
days
during
and times
which the child was
father,
including,
to reside with
but not
OPINION
to, periods totalling
limited
four to six
APODACA, Judge.
months,
during
weeks
the summer
as well
holidays
birthdays.
as certain
It also
appeals
(1)
the trial court’s order
provided for the child’s education and reli-
modifying
previously
the final decree
en-
gious upbringing.
Neither
was des-
(2) awarding
tered and
custo-
ignated
“primary
as the
physical custodi-
dy
cross-appeals
to mother. Mother
denial
an,” although it is evident from the terms
of her costs. Father raises six issues on
that the child would live with
appeal: whether the trial court erred in
majority
her mother a
of the time. The
(1)
holding that
as a matter of both law and
found,
and the
do not
fact,
“primary
mother was the child’s
cus-
dispute, that the child thrived under the
cases,
parent”;
todial
joint custody arrangement.
parent having primary physical custody
is treated as a sole custodial
September
mother informed fa-
issue; (3)
at
as a matter of
ther of her intention to relocate with the
fact,
pending
both law and
mother’s
reloca-
Hampshire.
child from Las Cruces to New
parties’
tion out of state with the
child was
relocating
inability
because
She
of her
circumstances;
not a substantial
employment
to obtain suitable
in New Mex-
father had the burden of
ico. Father filed a motion
an in-
hand, argues
findings that
changing
the other
mother from
prevent
junction
substantially equal-
residence. After a
contributed
principal
the child’s
motion,
unsup-
upbringing are
ly
the trial court re-
to the child’s
hearing on the
court
removing
the child
the evidence. The trial
ported
strained mother
*3
(1)
matter could be
there was
proceeded
Mexicountil the
to find that:
from New
order,
moving
merits.
In the same
the child to New
on the
no
heard
planned
effects;
that mother’s
Hampshire
any
court ruled
have
adverse
the trial
would
Hampshire and father’s mo-
(2)
moving to
move to New
mother’s motives for
and
changing
prevent mother
legitimate
tion to
were
and ac-
to another state
principal residence
ceptable.
for
as cross-motions
treated
would be
findings
The trial court’s
and con
custody.
change of child
appear
the trial court’s
clusions
to reflect
merits, father
hearing on the
Before
joint custody, the
that in cases of
belief
physi-
motion
sole
formally filed a
custody was
parent
primary physical
his inten-
custody. The motion declared
cal
presumption
entitled to
if
the child to Socorro
to relocate with
tion
parent under Newhouse v.
custodial
Cha
custody
granted physical
to
the trial court
vez,
(Ct.App.
108 N.M.
two-day hearing, the trial
a
him. After
1988).
law that a
It is well-established
decree,
award-
court modified
physical
awarded sole
parent who has been
custody
the child to
physical
“sole
[of
custody may determine where the child will
rights of visitation ...
and liberal
mother]
live,
proof by
the noncustodial
absent
joint
continued
The trial court
to [father].”
against
the move is
the best inter
ent that
parties.
legal
both
by bad faith
ests of the child or motivated
DISCUSSION
parent.
part of the custodial
See
on the
id.;
Alfieri, 105 N.M.
(1)
(2)
Status as
and
Issues
Alfieri
—Mother’s
(Ct.App.1987); Auge Auge,
“Primary Physical Custodian”
(Minn.1983).
agree
We
N.W.2d 393
mother had had
held that
The trial court
misap
trial court erred in
father that the
custody” of the child
“primary physical
favoring parents
plying
It also held that
entry of the decree.
since
joint
having
physical
custo
had
change of circumstances
insufficient
joint
dy
We believe
situations.
change
primary
justify
a
been shown
situations,
it is the best interests
to father and
custody from mother
physical
prime impor
of the child that should be of
of the child
in the best interests
that it was
parent
either
wants to relocate.
tance when
primary custodi-
remain as the
that mother
See Alfieri Alfieri.
however,
Contemporaneously,
parent.
al
entered
the trial court
joint custody signifies
An award of
substantially equal-
shared
child’s time was
significant,
shall have
and that the
ly
between
responsibility
periods of
for
well-defined
equally to her
had contributed
40-4-9.1(J)(l)
child. NMSA
§
raising.
regarding
(Repl.Pamp.1989). Decisions
life, including
changes in a child’s
major
findings, the
Based on these
city
to another
parent’s proposed relocation
(1)
residence of
that a
concluded:
(1)
by:
agreement
may be decided
or
acceptable
parent,
custodial
chosen for
(2)
parents;
joint custodial
between the
a sufficient
purposes,
by
was not
itself
mediation; (3) binding
counseling
arbi
or
for a
change of circumstances
tration; (4)
particular deci
allocation of the
(2)
custody;
in cases of
and
(4) terminating
legal parent;
sion to one
primary
parent having
legal custody, the
awarding sole
treated as the
physical custody was to be
master;
parent;
reference to a
purposes of relocation.
custodial
for
40-4-9.1(J)(5).
a district court.
challenges
§
the court’s
event,
cannot terminate
any
the trial court
characterizing mother as the
conclusions
Mother,
joint custody unless there is
primary physical custodian.
(Minn.
Sydnes Sydnes,
and material
of circum-
stances
We
enun
order,
entry
joint custody
Sydnes
since the
ciated
as law in New Mexico.
longer
such that
is no
in the
We need not determine whether the
40-4-9.1(A);
of the child.
(that
provision
physical custody
in the
Jaramillo,
see
specified)
was to be shared as
was tanta
(Ct.App.1986).
P.2d 91
joint physical custody.
mount to
Suffice it
provided
specific
here
say
provision
did not clothe
periods during
mother,
which each
had re
primary physical
even as
custodi
sponsibility
Although
an,
court,
for the child.
it con
a term first coined
the trial
*4
templated
spend
that the child would
more
presumption
with the
and other benefits
mother,
desig
time with
the
did not
afforded sole custodians under Newhouse
primary physical
nate a
custodian as such.
and
Neither do we consider it a
Alfieri.
Instead,
provided expressly
“physi
it
that
prerequisite
application
principles
custody
cal
the
shall be shared.”
opinion
[of
child]
in
discussed
this
that
cus
custody
Joint
does not
absolute
an
tody
strictly
be
divided on a 50-50 basis.
equal
Hegerle Hegerle,
division of time.
v.
Hegerle Hegerle.
v.
We conclude the
(Minn.Ct.App.1984);
355 N.W.2d
726
trial court erred in
mother with a
40-4-9.1(L)(3).
joint custody,
Under
it is
§
presumption entitling her to
relocate
only necessary
physical custody
that
be the
proof
the child absent
from father of bad
responsibility
parties.
shared
Id. motive or detrimental harm to the child.
finding
We believe the trial court’s
(4)—Change
Issues
and
Circum-
of
primary physical
mother was the
custodian
stances and Burden of Proof
not,
itself,
dispositive
by
exclusively
of
that,
only significant
appeal,
argues
the
in
issue
this
as a direct re
namely,
misapplication
the existence of a substantial
sult of the trial court’s
of
change
above,
materially
proving
of circumstances
affect-
the law noted
the burden of
ing
change
the best interests of the
a
child. See
of circumstances was
Jaramillo;
40-4-9.1(A).
improperly
Treating
For
shifted to him.
the
reason,
parties’ dispute
this
we conclude that mother’s des-
as
cross-motions
custodian,
ignation
primary physical
change
custody,
as the
of
the trial court held that
only
necessary change
is not the
factor that must be con-
the
of circumstances had
making
change
necessary
justify
sidered
the
determina- not been shown to
a
of
designation
primary physical custody
tion. We do so because such
from mother to
does not clothe a
with the
father. The trial court also concluded
Newhouse
presumption entitling
change
sole custodial
a
of residence of the custodial
ent,
acceptable purposes,
ents the
to relocate children absent
chosen for
stand
alone,
proof
by
parent.
of harm the noncustodial
was insufficient for a
of
physical custody
Implicit
to father.
in the
custody,
involving joint legal
In cases
trial court’s
and conclusions is the
where
has been awarded
assumption
the
of
burden
parent
rights
to one
visitation
father,
changed circumstances
even
was on
parent, the decree is considered the
other
though
sought
parties
both
a
of
awarding
custody for
same as one
sole
physical custody.
purposes. Christopher-Freder
removal
N.J.Super.
by
Christopher,
223
It is well settled that relocation
ickson
However, parent having
(App.Div.1988).
agreement. provided that each plan here interests. Under periods responsibility appeal, well-defined facts we conclude have planned move hearing child. on an parents for the Mother’s both entered Hampshire, as father’s antici- footing,” as well interests of “equal with the best Socorro, un- pated move to made being paramount considera- conclude Scott, We therefore Shorty workable. 535 tion. See cases, by one (1975); Key, 519 Key see also may a sufficient parents constitute (in both (La.Ct.App.1988) cases So.2d justifying a modi- change of circumstances premised original custody award decree. See fication of modification agreement of the and Green, N.W.2d 252 Marriage re necessary proposed re- because of becomes (Iowa Marriage Lo- Ct.App.1987); In re change of parent, of one usual location vejoy, Ill.App.3d 109 Ill.Dec. heavy rule circumstances burden (1987). N.E.2d 636 placed on noncustodial applicable, the issue of are not as previously, the As we stated *5 contested). previously been has never the trial court’s belief conclusions reflected findings consist- adopting and conclusions proving of father bore the burden that remand, opinion the trial ent with this on Hampshire planned to New move mother’s shall bear in mind that the court the or was motivated would harm footing. equal it on stand before an Chavez; bad faith. See Newhouse Alfi- also noted this We eri Alfieri. apparently based on the trial premise was Issue misapplication the court’s of our need not disposition, Because of we the custodial to of a argument court father’s that the trial reach relocate. holding child would not suffer erred the moving to New adverse effects proof to establish a
The burden of Ultimately, Hampshire with mother. party seeking of is on ad- the child would suffer such v. Schuer whether modification. Schuermann (1980); mann, effects will involve a determination 607 P.2d see verse (requiring a is in the interests of the child. Seeley v. show of what Jaramillo should enter material of conditions af We hold that child). findings on fecting of the amended and conclusions based the best opinion. Fa- deciding principles discussed in this factor to be considered One entitled to a court’s determina- modify to is child’s ther is trial whether school, home, legal principles, rath- to his and com tion based on correct adjustment being placed stressing Factors than at an unfair disadvan- munity. 40-4-9. er See § respect tage applicable presump- environ stability continuity of care and to importance proof. For this rea- of to tions and burdens of ment are son, court what the trial must redetermine younger children. Schuermann Thus, Schuermann; Sydnes Sydnes. is in the child’s best interests. cases, the bur ordinarily, seeking to relocate to party is on the
den Issue inter that the is show Both concede the trial the child. ests of Id. finding the child should court’s by plane eight anticipat alone until she is Although mother’s travel it was age unsupported by substan precipitat years Hampshire move to New ed Our of the record proceedings in tial evidence. review ed the finding. no reveals basis for this appeal, we that father also de likewise this note expressed contrary, to Socorro. To the neither to relocate with the child sired fly ability to reasons, place about to concern For these we decline reason, parents modify find- For this we set aside the cross-motions of the to alone. Fitzsimmons, joint custody provisions ing 17. 104 the of the Fitzsimmons separately I (Ct.App.1986) N.M. divorce decree. write to clari- (court’s fy proper I supported by must be sub- what believe to be the evidence). relating proof to the burden of where a stantial modify joint custody seeks to de- CONCLUSION permit cree so as to relocation of a child to city substantially a different thus difficulty We realize the of the trial impacting provisions prior decree court’s decision when it was confronted joint custody. proposed move mother’s Yet, us, Hampshire. apparent it is after states, majority opinion under the conclusions, a review of the case, circumstances of this it “de- misapprehended that the trial court the law place the burden of clinéis] applicable situations. Nei- proposed mother to establish that the [the] ther do we believe the trial court realized relocation to New implications awarding involved disagree child’s best interests.” I that this physical custody to mother under this mis- correctly spells proper statement out the apprehension. although We conclude Although rule. in this case both moth- finding the trial court entered a that it was er and father indicated their desire to relo- in the child’s best interests that mother cate, insofar as the move each primary parent,” “remain as the custodial parents may materially impact finding improper was based on as- provisions existing joint custody pro- proof. sumptions and burdens of The trial vision, carried the burden of *6 properly pri- court did not determine the establishing any proposed modification mary in issue of what was the child’s best prior joint custody of the in order is interests. child’s best interests. modifying joint The trial court’s order Strosnider, In Strosnider v. 101 N.M. light dispo- reversed. In of our is 639, 646, 981, (Ct.App.1984), 686 988 sition, mother’s denial-of-costs issue is joint this court observed that an order for need address it. We moot and we not custody may be modified or terminated remand to the trial court with instructions the motion of one or both if adopt of fact and conclusions of the best interests of the minor mod opinion, law consistent with this and for ification or termination of the order. Sim entry of an amended order. Each Garcia, 277, ilarly, in 81 N.M. Garcia ty respective shall bear his or her costs and (1970), involving a case not attorney appeal. fees joint custody, supreme child our court stat IT IS SO ORDERED. right ed that the of a custodial relocate should not be interfered with ex ALARID, J., concurs. cept clearly con where move would be trary Similarly, the to the child’s welfare. DONNELLY, J., part, in concurs applicable involving joint legal in cases part. in dissents custody, child where the de DONNELLY, Judge (concurring in concerning cree is silent of reloca part, dissenting part). in tion, and where the are unable Following appellee’s motion for rehear- modification, agree upon requires following special ing, I submit the modified seeking substantially to move to a location concurrence and dissenfa residence, place from the of former distant majority prove that the order that the relocation will be I concur with the case, modifying joint custody should be reversed child’s best interest. such NMSA 1978, 40-4-9.1(J)(4) (Repl.Pamp. adoption of amended Section and remanded for law, 1989), requires written notice of findings of fact and conclusions of advance addressing proposed relocation. Section 40-4-9.- entry of an amended order 342 tendency courts is not pre increasing
1(A) shall be a The provides that “[t]here in the best of an otherwise joint is to allow modification sumption that initial joint legal in an cus interest of a child workable and successful specifies The statute also reason tody arrangement for the sole determination.” joint shall not terminate that “the court locale. parent wishes to that one Rusin, has been a substantial custody unless there Rusin the court stated As af change in circumstances 534, and material 701 Misc.2d 426 N.Y.S.2d [103 child, entry since fecting the welfare outweigh (1980) mere distance does ] Id. custody order.” joint custody, joint (legal) nor the benefits of joint custody unworkable. Anoth make under Section presumption created Bazant, App. er court [Bazant 40-4-9(A), custody is (1981)], urt Div.2d 439 N.Y.S.2d child, disappear does not interest of a f transporta modern her reasoned that to move outside seeks many ad lessen tion and communication par remains on the and the burden geographic separation. relocate, verse effects of if relocation will seeking to ent may grant Although courts modification require modification decree, modifica award due to one to show that the move, interests. geographic child’s best the modification tion is ent’s Chavez, 108 N.M. Newhouse usually coupled other demonstra is (burden (Ct.App.1988) is on P.2d 353 which ad changes ble circumstance custody to of child modification versely affect the child. [Footnotes change of circumstances and that show omitted.] favor of change overcomes policy public fact In view of the decree); reasonableness Alfieri except joint custody, favors an award of (Ct. P.2d 4 Alfieri, 105 N.M. demonstrably con- where such award is (burden to establish App.1987) child, the trary to the best interests of the upon party seek attempt to accommodate courts should v. Jar modification); see relocate, and at the same parent’s desire to amillo, (Ct.App. P.2d 91 aspects of the preserve positive time 1986) (once custody has been decided joint custody provisions. The burden of court, in favor of *7 exists however, party seek- proof, rests decree); the reasonableness custody decree ing modify prior joint Blake, 541 A.2d Blake v. 207 Conn. proposed modification is in to show that the (1988) (burden proving that a modi If best interests. the child’s custody is fication of modification of relocation will necessitate party seeking modifi with the of child rests order, court should cation). proximity of the homes proposed modified to submit a for considera- important factor ents is an See, e.g., the court. plan for review evaluating custody. In the tion 40-4-9.1(F)(5). Kaufman, Kraut, text, McCahey, M. C. 2 J. Zett, Child Gaffner, M. & J. D. Silverman and Practice
Custody Visitation Law & (1990), the authors note:
§ 13.08[4][a] to a desires to move
When considerably distant
new location parent, modification from
the other frequently sought. custody is
to sole