*1 therefore ported by the evidence and are methamphetamine. change for affirm the district to deference. We findings supported are entitled Board’s on Count Two findings upholding the Board’s showing provided Dr. court order by evidence that Suits appeal costs on sample of controlled and conclusions. We award K.B. with two bottles Three, the Board’s to the Board. substances. Count prescription to finding gave that Dr. Suits person K.B. that was made out another SCHROEDER, KIDWELL, Justices by handwriting expert’s supported
was tes- Pro Tern EISMANN Justice Four, timony. exchanging prescrip- Count REINHARDT, concur. methamphetamine, a “teener” of tion for
supported by
taped
in a
conversa-
evidence
by
supported
evidence
tion. Count Five was
that has
of Dr. Suits’s criminal conviction
appeal.
been affirmed on
Count Six was
doctor,
testimony by
a nurse and
based
and that evidence revealed that Dr. Suits
medical records
submitted falsified
are evidence we uphold the Board’s order. Attorney’s
D. Fees requests
The Board an award for at torney’s pursuant I.A.R. fees costs
11.1 12-121. and I.C. Because the issue regarding authority ap of the Board
point hearing disciplinary officer to oversee proceedings was not settled at the time Dr. brought appeal,
Suits we conclude Accordingly, appeal. not a frivolous this was attorney’s fees are not awarded to either
side.
IV. CONCLUSION reach the issue of whether the We do not in an entrapment defense be raised proceeding Dr. administrative because conflicting preclude our own claims Suits’s entrapment defense. consideration of the findings sup- that the Board’s We hold *2 Welsh,
Cosho, Humphrey, & Greener argued. Glynn appellant. Daniel Parsons, Stone, Burley, for re- Smith & argued. Parsons spondent. William TROUT, Chief Justice. appeal permissive Court
This is magistrate judge’s decision to directly from prohibit a increase a father’s visitation relocating the children out- from mother Minidoka Counties side Cassia Boise, Idaho.
I. AND PROCEDURAL
FACTUAL
BACKGROUND (Larry) Rob- Larry Roberts (Kimberly) married in 1985 were erts divorcing in 1996. prior had two par- proceedings, the divorce part of the As “Custody Property Settle- signed ties (Custody Agreement) and Agreement” ment “Parenting Plan.” involved Custody Agreement, parties has been In the (Davis) 1997, and is joint legal custody of the since agreed to with Ed Davis share him; Kimberly receiving primary marry Davis is on presently engaged rights embezzlement; custody subject Larry’s physical probation for Parenting Plan. The set forth Boise with Davis. addi- plans to move to following limita- Agreement tion, also contains could stipulated the court *3 in Cas- depo- tion on relocation: “Wife shall reside custody evaluation use the written County perma- and will not sia or Minidoka help make its decision. of Dr. Atkin to sition either of nently remove the children from facts, stipulated Dr. Atkin’s Based on the the written consent of said counties without Evaluation, testimony deposition the prior court Husband or order.” Atkin, parties’ and the tax returns of Dr. Parenting provides The Plan 2000, magistrate judge concluded it the weekend, rights every four visitation other the in the best interests of vacation, and alter- weeks over the summer away from their children to move 160 miles addition, holidays. through nating In various reason, magistrate the father. For Plan, provisions Parenting Kimberly agree permitting to to would not they on-going agreed would continue to have she did so without relocate to unless optimize contact with the children taking children with her. The order parents. In children’s with both that if did decide to relo- recited relocation, Parenting pro- terms of Plan cate, custody would be transferred to then vides: Larry, continue to re- so the children could agree to with the We each communicate ap- Burley area. then side parent prior moving from our other sought pealed magistrate’s decision and current residence a move could because appeal directly Supreme permission to arrange- parenting affect the nature of this pursuant Appellate Rule 12.1. Court to Idaho move, In ment. case of a our communica- granted appeal Permission and the tion focus on we can still be how now before this Court. way involved as that would meet the needs of the children. II. 16, 2000, years On March almost four after STANDARD OF REVIEW divorce, Larry Modify filed a Petition to support custody the child schedule. permissive This case is on direct Larry sought greater visitation with the chil- judge appeal from a decision of a dren because he wanted to take a more children; affecting custody of minor daily active role in their routine and school therefore, directly reviewing this Court is activities, adjusted his workload had such magistrate’s decision without the benefit of a spend that he had more time to with the custody In appellate court decision. district older, children, and the children were now awarding custody of minor disputes, the independent, spend more and more able children rests within discretion away from their mother. October time On whose decision will not be over trial court 2000, 17, Counterpetition filed a appeal absent an of discre turned on abuse Modify judgment and decree of divorce Koester, 654, 657, tion. Koester v. 99 Idaho County for to allow her to move to Ada (1978). 1370, general, 586 P.2d 1373 employment purposes. party re- Neither does not abuse this discretion so trial court quested change custody. long recognizes the issue as one as discretion; 11, 2001, limits of its April parties participated acts within the outer On consistently legal magistrate judge with the in a mediation with the choices, assigned applicable failed to the available to the case. When mediation standards settlement, through an exercise produce parties agreed and reaches its decision Ida Valley Shopping Ctr. v. stipulated facts to the of reason. Sun to submit a set of Co., 87, 94, 119 Idaho 803 P.2d an adversarial evidentia- ho Power to avoid (1991). Further, any decision ry hearing. stipulated facts include: 1000 404 transferring the support the order interests of the do not
affecting the best custody Kimberly re- in the event children’s primary consideration. should be the child area. How- 920, 921, outside the Mini-Cassia See, locates 576 e.g., Cope Cope, 98 Idaho ever, this Court determines (holding paramount P.2d 202 did not abuse discretion: suit, including question any discretion, recognized the issue one suit, the best change is how will the limits of his discretion Roe, acted within served); Doe v. of the child be interests standard, and reached the applied the correct 805, 808, Idaho 992 P.2d through an exercise of reason. decision interests of the child (1999)(holding the best applies proceedings to terminate standard Kimberly’s first problem central Estate, parental rights); In re: Crocheron’s magis- characterized the argument is she has P. 16 Idaho when, change of decision as a trate’s of the child (1909)(holding the best interests initially fact, de- decision *4 legal right applies standard where Kimberly al- should be termined whether guardianship of the child to the only and to with the lowed relocate unclear). secondarily and awarded Kimberly to move to Boise.
only if chose III. in statutory factors set forth While relevance, the deci- may § some 32-717 DISCUSSION town the more to what sion here related (1) in, in than whose would five rather Kimberly appeal: on raises three issues Moreover, custody they reside. while magistrate judge abused his dis- whether the may have cited to I.C. deciding custody of the the trial court in to transfer cretion decision, magistrate, § in the Kimberly 32-717 Larry in the event children to (2) area; fact, statutory relevant to applied the factors the Mini-Cassia moves outside magistrate consid- incorrectly applied a relocation decision. whether the interrelationship of and upon ered the interaction and York law which New California (3) parents, the children’s decision; their the children with reaching his and he relied community, adjustment their and school Kimberly attor- should awarded whether integrity of all individuals health and bringing neys’ fees and costs incurred involved, stability in the continuity and appeal, pursuant to I.C. 32-704. Thus, deci- the trial court’s lives.
children’s Judge by analysis of Magistrate properly guided Did Not Abuse an A. The sion was Determining children. Discretion interests of the His the best in the Mini- Remain Children Should fails, argument also because Kim’s second Area. Cassia by magistrate acted within his inter- considering to the best factors relevant Kimberly argues findings analysis his the child ways. ests of two judge abused his discretion decision, demonstrating support his ultimate First, argues magistrate failed by an act of reason. was reached legal set the decision appropriate standard as apply deny Kimberly’s Second, support the decision to In 32-717.1 forth Boise, the children request to move with magistrate considered argues the factors the interrelationship of the The interaction and in- 3. of children —Best 1.I.C. 32-717. parents, parent or and his with his or her for divorce the child terest. —A. In an action siblings; judgment, give di- may, after such or her before and home, adjustment custody, to his or her care and education of The child’s for the 4. rection school, necessary may community; marriage as seem integ- physical of the children. health and proper in the best interests mental and or 5. The involved; ah relevant factors rity shall consider all individuals The court continuity promote and stabili- which include: need to 6. The child; ty in the life of child’s or The wishes of the 1. in section as defined Domestic violence custody; her as to his or Code, 39-6303, whether or not Idaho his or her of the child as to 2. The wishes custodian; the child. presence of
405
and,
major
Burley,
remain in
enumerated seven
fac-
children should
chil-
tors relevant to the best interests of
child
chose to relocate to
analysis.
Kimberly argues
stay
Larry Burley.2
While
there are
dren should
problems
findings,
various
with these
includ-
fiancé,
Kimberly’s
ing
emphasis
an undue
on
Magistrate
Did Not Err in Con-
B.
Davis,
findings
this Court determines these
sidering
and New York
California
competent
support
are
and relevant and
Law.
magistrate’s ultimate decision.
request
considering Kimberly’s
Findings
competent,
long
are
so
as
relocate,
magistrate judge
considered
substantial,
they
by
pos
supported
are
albeit
guide
outside Idaho to
his
two cases from
sibly conflicting,
Lickley v.
evidence.
Max
Marriage
Burgess,
In re
13
decision.
Herbold, Inc.,
Idaho
P.2d
444,
25,
Cal.Rptr.2d
judge Kimberly’s living arrange- to consider Tropea, the courts reversed the tradi ments, including person the with she whom presumption against relocation and tional living, particularly given legal prob- placed parent the burden on the other findings clearly lems. Those related to the present why a move should not be evidence integrity health and of the individuals who contrary permitted. This is to Idaho law. direct and close contact with the Idaho, In the best interests of the children is Furthermore, findings children. these do Therefore, always paramount the concern. Davis, place importance not undue on since judicial any regarding in determination the judge findings sup- the six in included other children, including they of where port of his decision. Included within the reside, interests of the child should the best magistrate’s analysis and relevant to the best primary be the standard and consideration. interests of the children are the children’s addition, partic In Idaho favors the active ability to continue to have a with ipation parents raising of both in children Larry Kimberly if moved to The trial Boise. divorce, policy in after which is reflected court also considered that for the last six joint custody. supporting 32-717B For years, divorce, parties’ the the since children reasons, Idaho, moving parent these in original had been able to remain in the fami- proving the burden of relocation would has ly home in and to be both in the child before the best interests of neighborhood. same The noted moving previous of a violation moving the the Mini- that children from arrangement. area would remove them from the Cassia case, appear In it does not from the support that “source of would be available on [Kimberly] community.” magistrate’s decision that he relied remained in the Therefore, place York California and New cases to on state of the record and the objecting findings by magistrate, proof party on the to the there was no burden freely chang- determining approved abuse of that Kim- move or of a discretion children, Thus, berly appears be no ing was not free to move the location. there making troubling future deci- 2. Most is that the Court was informed interests of the children during argument reside, and the chil- oral will sions about where the children living dren are now chosen not in Boise and has orders, seeking to do so without be able object being. for the time One ignore. they apparently which hope parties will consider the best at custody might judge’s change when a error consideration time Therefore, I respectfully of these two cases. occur. dissent from majority opinion analysis of the Should Not Be Awarded At- would vacate order re- C.
torneys’ proceedings. Fees. mand for further this case circumstances, particu
Under these I. larly where acted in violation of magistrate’s order and moved to AND FACTS PROCEDURE awarding pursuant fees to I.C. 32-704 is appropriate. not The asked the court to
consider two modifications to
IV.
Sehedule/Parenting
plan):
(parenting
Plan
(1) whether Mr. Roberts should have more
CONCLUSION
children;
time with his
whether Ms.
Roberts should be able to relocate from the
magistrate judge
did
abuse his
opinion
In
Mini-Cassia area to Boise.
whether the best
appeal, magistrate
stated:
would be
interests
served
relocating
them
Boise. The
primary
proceedings
issue of these
properly
considered a number
factors re-
the request
[Ms. Roberts]
to be allowed
interests,
to the
includ-
lated
children’s best
permanently
remove the
from
ing some of the
set forth
32-
factors
Minidoka
If
Cassia and
Counties.
Furthermore,
relocation decisions
Court denies consent to remove the chil-
this,
such as
is on
burden
dren,
have to
[Ms. Roberts] will then
de-
seeking
prove
to relocate to
relocation is in
stay
if she wants
in the Mini-
termine
light
the best interests of the children.
Cassia area
here,
the result
we
not award
fees
do
costs or
*6
or
allow
move and
the defendant
have
appeal.
on
custody.
magistrate
The
found that the test
deter-
SCHROEDER,
Justice
WALTERS and
mining
plan
parenting
whether the
should be
EISMANN, concur.
modified to allow Ms. Roberts to relocate
what is in
“remains that of
the best interest
KIDWELL, dissenting.
Justice
magistrate
of
children.” Factors the
presents very important public
This case
applying
test included:
considered
policy
affecting
issues
Idaho families. How
seeking
oppos-
or
each
reason for
parent may
courts decide where a custodial
move, quality
relationship
ing the
of
be-
parent
custody
which
live or
should
impact
... parents,
tween child and
extremely
scrutiny.
demands
careful
child
on ...
future contact
move
his discretion in
The
abused
two
parent, degree to which cus-
noncustodial
First,
respects.
improperly
he
significant
may be en-
parent’s
todial
and childs’ life
applied the best
of the child test in
interest
economically, emotionally, and ed-
hanced
(BIOC test)
§
to Ms.
re-
32-717
Roberts’s
move,
feasibility
by
ucationally
and
quest to relocate
with her children.
to Boise
preserving
relationship
between the
test
Applying the
as he did was
“neces-
.
parent
through
child
noncustodial
and
sary
proper
or
best interest of the
arrangements.
visitation
suitable
Second,
required
§by
32-717.
children” as
request
magis-
The
ordered that “the
perhaps
importantly,
most
and
that,
by ordering
to move the children outside
[Ms. Roberts]
erred
Ms. Roberts
trate
denied____”
any
at
Cassia or Minidoka counties
did relocate
time
indefinite
future,
that if
Additionally, the
ordered
physical
she would
of the
lose
or
Ms.
“moves from Minidoka
Cas-
This
of the
or-
Roberts
children.
clause
sia,
changed
arbitrary
punitive,
and failed to
of the children will be
der was
and
Roberts,
Mr.
and the children will reside
for the best interests of
account
added).
child,
explain why
phasis
The best interest of the
with him.” The court failed to
including
child’s
with the
would be
the children’s best interest for
im-
parent,
to revert from
to Mr.
non-custodial
does constitute an
Ms. Roberts
portant
Roberts if Ms. Roberts moved from the
factor
whether a
any
grant permission
Mini-Cassia area at
time
the indefi-
court should
for a custodial
However,
parent
basing
nite future.
to relocate.
a deci-
parent’s right to
sion about a custodial
relo-
II.
solely
cate
on the BIOC test overshadows
essentially
eliminates consideration of
STANDARD OF REVIEW
parent’s protected liberty
the custodial
inter-
live, work,
choosing
reviewing an
ests
where to
“When
exercise of discretion
(1)
Thus, determining
inquires:
the Court
lower
raise children.
where
whether the
five, work,
rightly perceived
the issue as one of
custodial
(2)
discretion;
solely
whether the lower court acted
based
test
an
BIOC
constitutes
within
unnecessary
improper
the boundaries of such discretion and
interference with
consistently
any legal
applica-
standards
parents,
the interests of custodial
not a “nec-
choices;
specific
ble to
essary
whether the
proper”
direction “in the best
court reached its decision
an exercise of
interest of the children.”
32-717.
Allen,
reason.” Brownson v.
Therefore,
134 Idaho
inappli-
I would find
32-717
(citing
995 P.2d
Osteraas
cable in
case.
Osteraas,
350, 353,
124 Idaho
859 P.2d
light
shortcomings
of the BIOC
(1993)).
applied
test
relocation of a custodial
parent,
par-
a better rule is that a custodial
III.
liberty
choosing
ent’s
interest
where to
live,
children, gives
work and rear
rise to a
ANALYSIS
presumptive right
presump-
to relocate. The
Improperly Applied
A. The Court
The
however,
tion,
is not absolute. The non-
Best Interest
Of
Child Test To
parent may
presumption
custodial
rebut the
The Issue Of Whether Ms. Roberts
by showing
purpose
that the
of the relocation
Could Relocate.
par-
is interference with the non-custodial
See,
rights.
e.g.,
Marriage
ent’s
32-717(1)
In re
found that I.C.
Burgess,
Cal.Rptr.2d
13 Cal.4th
governed
request
modify
Ms. Roberts’s
*7
444, 449,
473,
(1996);
913 P.2d
478
In re
parenting plan
the
so that she could relocate.
Postma,
Marriage
accord with
Brownson,
63,
e.g.,
opinion.
No. 27967. Appeals Court of of Idaho. Jan. *9 Frachiseur, Home,
Edgar R. Mountain for appellant. Lance, General; Attorney
Hon. Alan G. Jorgensen, Deputy Attorney Kenneth K. General, Boise, respondent.