Stout v. Stout

(Sand- (N.D.1995) 155,166 Reed, result); J., Bruner

strom, concurring (N.D.1996) 551, 555 Hager, 547 N.W.2d

(Sandstrom, J., dissenting). The trial court statute, N.D.C.C. then follow

should custody 14-09-06.2, based and establish child, including con- of the

the best interests whether, by and convinc- clear

sideration evidence, the best interests

ing perpetrator placing

require violence.

domestic 14] Dale V. Sandstrom

1997 ND 61 Jr., STOUT, Plaintiff R.

James Appellee, STOUT, Defendant L.

Julene Appellant. 960150.

Civil No. Dakota.

Supreme of North Court

April

905 (argued), Moosbrugger,

Shirley A. Dvorak Carter, Forks, Dvorak Grand for defen- & appellant. dant and Thelen, Spaeth (argued), Spaeth, Kevin B. Voorhis, Forks, Dearstyne & Van Grand plaintiff appellee.

MARING, Justice. May appeals

[¶ 1] Julene Stout from 24, 1996, denying permission to order move from North Dakota to Arkansas with parties’ minor child. We reverse grant request trial court’s denial and Julene’s to move. We remand the trial court visitation schedule and establish a reasonable judgment in to enter an amended accordance herewith. married

[¶ 2] Julene and James Stout were 1983, in Iowa in and one child was bom (Tell), in marriage, Tell William Stout December, 1993. James for the U.S. works service, and transferred to Marshal was 1987, family Grand Forks where the since lived. divorced, 1995, couple

[¶ 3] In February final on decree became custo- primary physical awarded Julene was Tell, dy granted and James was weekends, evenings per alternating two week, holidays, Day, and alternating Father’s during the was six weeks summer. James per in child pay month ordered to $653.00 support per spousal month $500.00 original support years. During for four proceeding, requested Julene divorce Tell to move to Arkansas with she allowed to seek em- to be to her closer ployment. the move. denied have their [¶ 4] Both Julene James justice. Since degrees in criminal master’s pur- marriage has not their Julene field, in this has followed sued career but pursuit James of his career from Iowa to consent to the move. Mississippi change

Kansas to to North Dakota. Af- must show that the of residence is in ter Tell’s birth in Julene did work interests of the children. Thomas home, stayed Thomas, provide outside the but home couple’s Olson, (N.D.

full-time care for Tell. After the (citing Olson 361 N.W.2d 249 divorce, part-time 1985)). position Julene obtained a principal responsibility It is the firm, an working as office assistant in a law the trial court to decide whether a per hour with no benefits. She $6.00 residence is the best interests the child. position contends this is soon to be eliminat- Thomas, 446 N.W.2d at 434. This court will ed. judgment not substitute its for that of the trial court unless the trial court’s decision is 1996, In March of [¶ 5] Julene moved to 52(a), clearly erroneous under Rule change Arkansas, Tell’s residence to finding clearly N.D.R.Civ.P. Id. A erro- motion, James resisted. At the time of this 52(a), N.D.R.Civ.P., neous under only Rule if position Julene had been offered a full-time by law, it is induced an erroneous view of the Arkansas, Springdale, at J.V. Manufactur- it, if, if support there is no evidence to or ing Company earning per hour with full $8.50 it, although support there is some evidence to presented benefits. Julene documentation to evidence, on the entire we are left with a the court to show that she has been unable to definite and firm conviction that a mistake employment find suitable in North Dakota. McDonough Murphy, has been made. apartment She testified she an found in Ar- (N.D.1995). 313, kansas; day-care Tell; placement found living would be proximity close to her ease, present reviewing after children; and a sister with small presented, all the evidence this court con- only would be two hours from par- James’ cludes that trial clearly court’s decision is ents. Neither James nor any Julene has erroneous because it was induced an erro- extended in North Dakota. law, although neous view of the there is it, support some evidence to on the entire [¶ 6] The trial court denied Julene’s motion record we are left with a definite and firm 24, May first, 1996. It reasoned James conviction that a mistake has been made. had rights exercised his visitation opportunity clarify We take to stan- suffer; second, relationship would the court apply petition dards that to a for removal of had request denied Julene’s to move at the a child to another state the custodial divorce; third, time of the per the $2.50 parent parent when the noncustodial refuses wage hour increase was not a “sufficient to consent. enough advantage- justify economic separation” of Tell and James. The court long It policy has been the in this noted that Julene should be able to rehabili- state that “the best interests of the child” is tate remaining Forks, herself while in Grand primary determining consideration in precisely why “[t]hat is the court or- parent may whether or not a custodial dered the support combination of child change the residence the child. Bunch v. spousal support in order to allow [Julene] Bunch, (N.D.1981). 314 N.W.2d Pres- stay area, in this making if she even were ently regarding removal, our statute relatively low income.” The court also stated (1991), § N.D.C.C. 14-09-07 if states “change there had been no of circum- parent rights noncustodial who has visitation request stances” since Julene’s last to move. removal, agree not does the custodial

parent must seek court order. The custo- parent prove, preponderance [¶ 7] Section 14-09-07 dial of the North evidence, Century compels Dakota Code a custodial that the move is in the best parent judicial Olson, to receive permission to interests of the child. Olson change (N.D.1985). the residence of children to another N.W.2d In Hedstrom v. state if Berg, does not we custody A entitled to the of a child cases the trial in removal

held may change the residence of the child favorable factors weigh the should except upon to another state order of the negative impact on the against court or with the consent the noncusto- non- the child and the between dial has parent. given rights by been the decree. necessary history It to look at the required if A court order is not the noncus- analy- clarify § N.D.C.C. 14-09-07 (1) has not todial exercised visita- in this case. Prior to sis and decision (2) period year for a of one tion 14-09-07, stated: N.D.C.C. moved to state has another and is fifty [80.47 than miles from kilometers] a child A entitled parent. [Em- residence residence, subject right change his phasis added] to re- power of the district court prejudice strain removal which would (1991). § 14-09-07 The word N.D.C.C. [Emphasis rights or of the child. welfare “may” changed regard “shah” was added] entitlement to child to the residence another state. 1979, Leg the North Dakota In statute, construing In a words are to be § 14- Assembly amended islative N.D.C.C. ordinary their sense. understood 09-07, language granted removing which Although § N.D.C.C. 1-02-02. the word “right” a parent the to remove the custodial “may” ordinarily as permissive, is construed 194, Laws, § eh. child. N.D. Session statute, it construe as “must” we The statute then read: compels such construc because context child parent A of a entitled tion. See North Dakota Com’n on Medical the child shall not the residence of Racek, 262, Competency v. except of the upon order another state (N.D.1995). also add The amendments court or the consent of the noncusto- exception to when court order is ed another parent the noncustodial dial where out of required move child's residence rights visitation given has been 150, Laws, state. 1991 N.D. Sessions ch. decree, however, a court order shall not be (1991). 1;§ § If the N.D.C.C. 14-09-07 required parent has not if the noncustodial parent moved has out of North noncustodial period rights visitation for exercised such fifty and is than miles from the Dakota year. [Emphasis of one added] residence, a parent’s court order custodial simply required. logical It is not to Id. (1979). legislative § N.D.C.C. 14-09-07 require parent obtain a court history the statute was so amended indicates parent order to when possibility of the custodial minimize the already Dakota. out of North has moved defeating rights of the parent visitation amendments, it During hearing on these by moving children parent noncustodial requiring that the reason was reiterated H.B. Hearing of North Dakota. See on out permission of the noncustodial court order 1585, the Committee on Social Wel- before changing of a parent before the residence Affairs, Legislative fare & 46th Veteran’s prevent parent from is to (March 2, (1979), 1979, testimony Assembly moving out of state with intention Stenehjem). Rep. re- Wayne The statute defeating the visitation noncustodial quires permis- obtain Hearing before rights. on S.B. changing resi- sion of court before Committee, Legisla Judiciary 52nd Senate dence of child. (Jan. (1991) 21, 1991, Assembly state tive again It is legislature Wayne Stenehjem). of Senator [¶ 12] ment 14-09-07, N.D.C.C., purpose of the statute amended limited section clear Laws, safeguard § ch. 1. The statute N.D. Session thereby maintain parent and to presently reads: promote § and child relation N.D.C.C. 14-09-07. The statutes of Mas sachusetts, ship. [Mass.Gen.Laws Ann. ch. (1994)]; Minnesota, § 30 [Minn.Stat.Ann. Nearly fifty of our each states § (1990)]; Missouri, 518.175 subd. of whether a addressed the issue custodi (1994)]; § 452.377 and New [Rev.Stat.Mo. al can relocate another state with (1993)] Jersey, § 9:2-2 all [N.J.Stat.Ann. the child law either case statute. and/or language contain general trend over last two decades “shall not” juris remove the child from the permit has been for courts to removal of a diction parent’s permission without the other child from the state statute, or court order. The Massachusetts can demonstrate that the move is consistent (1994) Mass.Gen.Laws Ann. ch. 208 30 child,” with “the best interests of the a stan Jersey statute, the New 9:2-2 N.J.Stat.Ann. by weighing balancing specific dard met (1993), specifically only allow removal hereby specific factors. We establish factors “cause shown.” Each of these states has to be considered in a determination of what articulated standards determining “the is in “the best interests the child” in the interests of the child.” Due to the parent’s request context of a custodial similarity of the statutes of these states to statute, move the the North residence a child out of Dakota North we concentrate analysis Dakota. how these four states have interpreted respective their statutes. Dakota, addition to North other Jersey’s statute, [¶ 16] New removal specifically states have statutes addressing 9:2-2, states, pertinent N.J.StatAnn. removal of minor children from the state part: parent.1 The common thread through that runs any these statutes is that Superior jurisdiction When the Court has contemplated by move custody over the and maintenance of the will be resolved in favor of “the best interests children, divorced, minor parents of ... courts, however, of the child.” State have they juris- shall not be removed out of its articulated different standards which to against consent, diction their own if of determine “the best interests of the child.” age same, signify suitable nor while There judicial several “schools of age under that without the consent of both thought” concerning removal of a child parents, court, unless cause out of state.2 shown, shall otherwise order. twenty-one Of states other than Jersey Superior The New op Court had an North Dakota which dealing have statutes portunity interpret twenty this statute specifically with removal of a child from years ago in the oft-cited case of v. D’Onofrio jurisdiction, substantially four are D’Onofrio, 200, similar to 144 N.J.Super. 365 A.2d 27 Arizona, 25-408(0(1) (1996 1. § 50-13.2(c) (1995)]; Oklahoma, § [Ariz.Rev.Stat. [N.C.Gen.Stat. ]; California, Supp.) 10, (1987)]; § [Cal.[Fam.] Code tit. 19 Ore [Okla.Stat. 3024(2)(1994)]; § Georgia, § 19- 11, gon, [Ga.Code Ann. (1995)]; § tit. 107.159 [Or.Rev.Stat. 9-1(c)(1),(3) (1996 Illinois, Supp.)]; [750 Dakota, South (1992)]; § 25-5-13 [S.D.Codified Laws 5/609(a)(b) (1993)]; Indiana, Ill.Comp.Stat. Texas, [Tex.[Fam.] Code Ann. 31-1-11.5-21.1(b) (1993)]; Kansas, § [Ind.Codb 151.003(a)(1) (1996)]; Utah, § [Utah Code Ann. (1996 [Kan.Stat.Ann. § Supp.)]; 60-1620 Massa 30-3-37(1) (1995)]; § Virginia, [Va.Code Ann. chusetts, § Ann. ch. 208 30 [Mass.Gen.Laws (1995)]; Wisconsin, § 20-124.5 [Wis.Stat. (1994)]; Minnesota, 518.175 [Minn.Stat.Ann. (1996 Supp.)]. § 767.327 (1990)]; Missouri, subd. 3 [Rev.Stat.Mo. (1994)]; Montana, § 452.377 [Mont.Code Ann. (1995)]; Nevada, § 40-6-231 summary judicial For a of these “schools of [Nev.Rev.Stat. (1995)]; § 125A.350 New 661, thought,” [NJ.Stat.Ann. see 39 S.D. Law Review 674 Jersey, (1993)]; 9:2-2 New Mexico, (1994). [N.M.Stat.Ann. (1994)]; Carolina, § 40-4-9.1 North

909 Quirk-Edwards, (Ch.Div.1976), Marriage N.J.Su In re 509 per curiam 144 of aff'd (Iowa 1993); Mize, 476, v. 479 Mize 352, (App.Div.1976).3 A.2d 365 716 per. (1993), 417, decision, quashing 420 589 Court listed 621 So.2d So.2d Superior its Hale, Dist.1991); Hale v. 12 (Fla.App. 959 5 following factors for courts consider 812, 340, Mass.App.Ct. 429 344 allow or N.E.2d whether to making a determination (1981); Anderson, v. 170 Mich. Anderson prevent removal: 305, (1988); 627, App. 427 N.W.2d 628-29 prospective advan- It consider the should 393, (Minn.1983); Auge 398 Auge, v. 334 N.W.2d likely in terms its tages of the move 909, Effinger, inger v. 913 S.W.2d Eff general quality capacity improving the E.D.1996); Trent, Trent v. 111 (Mo.App. 912 both of life for 309, 1309, (1995); Nev. P.2d 1312-13 890 integrity of It must evaluate the children. 727, Tropea Tropea, v. 87 N.Y.2d parent in seek- of the custodial motives (1996), 575, aff'g N.E.2d 145 N.Y.S.2d ing to determine wheth- order (4 1050, Dept. A.D.2d 624 N.Y.S.2d 1010 by the inspired primarily er the removal Gruber, 1995); Pa.Super. v. Gruber to defeat or frustrate visitation desire (1990); 434, 440-41 v. For 583 A.2d Fortin whether (S.D.1993); tin, Taylor likely comply (Tenn.1993); Taylor, 849 S.W.2d no orders she is when substitute Love, (Wyo. and Love 851 P.2d jurisdiction subject longer 1993). take of this State. It likewise courts integrity into the noncusto- account related statute Massachusetts [¶ 17] The re- resisting dial motives reads, pertinent part, follows: as which, if moval and consider extent ... minor child divorced [a] all, opposition to secure is intended over whose and maintenance respect continu- advantage financial not, jurisdiction shall if probate obligations. ing support Finally, the consent, signify age his suitable there will be a real- must be satisfied that this commonwealth removed out of without opportunity for visitation in lieu istic consent, or, age, such under without provide ade- weekly pattern can an which parents, of both unless consent fostering for quate preserving basis and shown otherwise orders. cause noncus- parental with the is allowed. (1994). todial removal § In Ann. ch. 208 30 Mass.Gen.Laws Hale, 812, Mass.App.Ct. 12 429 v. Hale 200, 27 at D’Onofrio, N.J.Super. 144 365 A.2d (1981), Ap- the Massachusetts N.E.2d 340 Jer 30. factors articulated the New reversed trial court’s decision peals Court D’Onofrio, sey Superior Court in have either permission denying to the custodial mother or es approval with specifically been cited parties’ to California. take the three children adopted by many across sentially state courts decision, “[t]he In its stated: twenty country years. See over the last deciding purposes for interests of children Pollock, 275, P.2d Ariz. 889 Pollock v. 181 also permit removal are interwov- whether Hurst, 633, 1995); (App. Div. 1 Staab v. 636 being par- of the custodial en with the well (1994); 128, 44 Ark.App. 868 S.W.2d 517 therefore, ent, determination, re- and the Chester, 726, 907 730 Marriage re P.2d the mother also quires that the interests of Eckert, Marriage (Colo.App.1995); In re Hale at 342. taken into account.” be 316, 224, 220, Ill.Dec. 518 119 Ill.2d 116 referencing the 1041, 1045(1988), Ill.App.3d article rev’g a recent [¶ N.E.2d 148 (1986); 512, 70, psychologist Dr. S. research of noted Judith Ill.Dec. 499 N.E.2d 627 102 (1984). Jersey Supreme Court Jersey Supreme approved the The New Court 606 The New appellate by holding any in D’Ono- subsequently court's decision intermediate that test modified frio, wanted that a custodial who sincere, but held good v. reason will suffice. faith Holder advantage” a "real to move had show 852, Polanski, (1988). 544 A.2d 856 N.J. 111 Cooper Cooper, v. 99 N.J. 491 A.2d move. Wallerstein,4 parent. may the inextricable link between new These include a mar- job riage, important opportunity, an or a of the custodial the welfare help provided return an extended or child is addressed.5 The article “To Move family rearing in the of the child ...6 Not to Move states: single parent. can Imposing this choice be divorce, they inevi- parents consider When severely psychological detrimental tably question of whether confront well-being economic and over they stay together marriage should many years. potential It also has the for they for the sake of the children. If di- burdening parent-child relationship vorce, may presumed they it have many years, regardless of the choice the important it part decided is more parent makes. separate, fulfilling lives. re-establish Tanke, Tony Judith S. Wallerstein J. To fashion, By proceeding they in this effec- Psychological Move or Not to Move: establish, tively con- legal with or without Legal in the Considerations Relocation of sent, new kind of unit in which Divorce, Fam.L.Q., Following Children Vol. unit, child resides. Within when (Summer 1996) Pg. 314-15 30 No. visitation, parents opt custody for sole (footnotes omitted). primarily the child looks to the 19] The with third state a removal stat- caretaking parent, secondarily § ute similar to is Mis- N.D.C.C. 14-09-07 nurturance, visiting parent, protection, (1994) souri. Rev.Stat.Mo. 452.377 states: guidance. person custody A entitled to the designed Court intervention to maintain shall not the residence of the child geographical proximity of divorced to another state or remove the child from parents fundamentally odds with period exceeding this state for a of time necessarily decision divorce deter- ninety days except upon order of the court mines that each will his or rebuild parties or with the written consent of the separate from the life other. To re- rights. or visitation quire divorcing parents spend their lives appellate courts Missouri have had vicinity geographical the same unreal- opportunities several to examine statute. legitimately istic. The state cannot confine (Mo. Fuchs, See Fuchs S.W.2d particular to a individuals location in their S.D.1994); App. Riley Riley, 904 S.W.2d quest good things for love or the in life. E.D.1995); Stewart, (Mo.App. Stewart v. Forcing divorced to remain in the (Mo.App. W.D.1995); Effing 905 S.W.2d place may same undermine the divorce Effinger, er v. (Mo.App. E.D. S.W.2d decision and threaten the child with contin- 1996). The Appeals Missouri Courts of have instability ued throughout his or her child- enumerated four factors re consider hood. questions. moval These factors are essen tially D’Onofrio, identical to in those outlined Prohibiting par- a move supra, and read as follows: may ent parent force that to be- choose op- tween of his or child and determining In propriety of the custo- portunities may that benefit parent’s dial jurisdic- relocation to another unit, including tion, the child as well as the courts following consider the factors: Ph.D., Wallerstein, 207, Russenberger Russenberger, Judith S. founded the Cen- v. 654 So.2d 213 Family County, Dist.1995). ter for the in Transition Marin (Fla.App. n. 6 1 California, in 1980 and served as its executive director from 1980 until 1993. She has conduct- adapted article 6. This was from an arnica curiae published widely long-term ed studies on Tony brief filed Mr. J. Tanke of on behalf Dr. effects divorce on of children and adolescents. Supreme in the Wallerstein California Court case 25, Burgess, Marriage In re 51 13 Cal.4th of disagree 5. We note that some commentators that 444, (1996), Cal.Rptr.2d rev’g 42 913 P.2d 473 best child’s interests served are when the best 842, (1995). Cal.Rptr.2d 897 P.2d 1320 parent interests of custodial See served.

9H not in the best inter- that the move is advantages of the dence prospective 1. The Auge, ests the child.” 334 N.W.2d at 399. parent’s improving the custodial move to the noncus- This decision shifts the burden quality of life. and child’s not prove removal would todial parent’s integrity of the custodial 2. The of the child. Our be in the best interests for relocation. motives rejected presumption specifically this court Olson, 249, v. 251-52 361 N.W.2d Olson par- integrity the non-custodial 3. The (N.D.1985). move, opposing par- motives for ent’s opposition in- ticularly the such is extent summary, In our research other advantage a financial with to secure tended jurisdictions universally has failed reveal continuing support. respect question approach resolving the accepted relocate, may but when custodial opportuni- ais realistic 4. Whether there guiding principles emerge from several some an ty provide which can ade- visitation D’Onofrio, v. well reasoned cases. fostering quate preserving basis for D’Onofrio (Ch.Div.1976), 200, N.J.Super. 144 365 27 A.2d with the non-custodial N.J.Super. per 144 curiam aff 'd allowed. child relocation Hale, v. (App.Div.1976); 365 716 Hale A.2d (Mo.App. Effinger, In 913 S.W.2d (1981); Mass.App.Ct. N.E.2d E.D.1996), appellate court takes Missouri (Mo. Effinger, 913 Effinger v. S.W.2d clarify involving the “[e]ach case care to E.D.1996). App. resolved on of children be relocation analysis step is to next rather than facts of case particular court has in which this review cases rules, application of and the best rigid statute. the North Dakota removal construed always para- the child remain interests of Burich, N.W.2d 82 We held in Burich v. Effinger, at 912 918 S.W.2d mount concern.” (N.D.1981), “exceptional require we will (citation omitted). established before circumstances” to be ap- different has taken a [¶ 20] Minnesota granted permission parent can be regarding its proach interpreting statute at 84. a child out of state. Id. Our move 518.175, subd. Section Burich, removal. also established the test reads as follows: move was in the Minn.Stat.ANN. was whether the removal of the child. Id. best interests not move the shall ex- of the child another state residence Olson, [¶ 23] Olson or with the cept upon order of there no court held that was parent, when consent of the noncustodial parent’s deci- presumption given been has is in the best interests sion to leave the state by the rights decree. If visitation child. This court also established purpose of the to interfere move proof that burden given the noncustodial of the child is in the interests decree, parent by court shall not parent has exercised when permit the child’s residence to moved visitation. another state-. Carbno, 404 McRae [¶24] the statute is first sentence of Minnesota (N.D.1987), majority this court of the essentially to the first sentence of identical reiterated, allowing that for removal the test However, in the North Dakota statute. was in the best inter the move was whether (Minn.1983), Auge,

Auge However, denying v. 334 N.W.2d 393 a in of the child. ests McRae, a Supreme relocate, established in the Court Minnesota court motion favoring by relationship a presumption removal custodial on the placed great importance the requests parent “shall be and parent and stated such between noncustodial child, parent’s right of and the noncustodial granted party opposing unless the motion Id. by preponderance of the evi- visitation. a establishes parental Berg, relationship In way [¶25] Hedstrom sustainable (N.D.1988), necessarily of is inevitably we established that economic visitation and of a different character that than which is advantages of a move were factors be possible parents where and children that the trial court should considered and together reside single-family as a unit. nega- out of state with the balance the move ordinarily The fact day- remains that impact relationship tive on between the children, to-day of especially routine parent and the child. This ones, young and the quality their envi- pointed that a court out modified visitation general style ronment and their of life are providing longer periods schedule of con- provided that which are tinuous could be in the visitation used balanc- indeed, parent are, and which ing of these different interests. parent’s obligation provide. The chil- dren, Novak, parents’ separa- after the [¶26] Novak 441 N.W.2d divorce tion, belong family to a (N.D.1989), different unit than recognized in they did together. when lived opportunities creased career for the custodial family only unit new consists state, parent step-parent or a in another children and the custodial child, adjusted preference well of the child advantageous what is to that unit as a suitable modified visitation schedule whole, to each its individually members were all factors to considered determin way they and to the relate each other ing the best interests the child. together obviously function in the Thomas, Thomas v. best interests of the It children. is in the again rejected we pro- context of what is best for that unit precise showing nature posal that a and terms of visita- “exceptional circum- changes tion and necessary visitation non- stances” the residence must be considered. recognized aof child. We that interference visitation is a factor to be consid- D’Onofrio, N.J.Super. 200, 365 A.2d 27 at ered the best interests of child in D’Onojrio, 29-30. The court in specifically context of removal. recognized importance developing maintaining between non [¶ 28] Our review of these cases indicates impor child and now, that until our court has articulated a tance of D’Onofrio, visitation. 365 A.2d at resolving standard for relocation issues Indeed, fully cognizant this court is which, stated, simply is “the best interests of both interests of dispute the child.” we do While maintaining healthy child in achieving “the interests of the child” loving relationship. Our court has stated: objective remains in resolving the ultimate Dakota, “In North privileges visitation issues, relocation we believe that the stan- promote created to the best interests of the given dard must be specific and in- Burich, 86; child.” 314 N.W.2d at see also structive provide content order to our trial McRae, 404 N.W.2d at 509. adequate guidance provide courts with and to weighing [¶ 30] In the effect relocation has dispute more uniform resolution. rights, recognized: we recognition begin 29] We with the If grant permission the court refuses to significant divorce changes parent- causes children leave the state and the relationships. In perhaps leading leaves, the roles are re- disputes, case relocation Jersey the New versed, problem but the is the same: The these discusses issues: move has interfered with or restricted the ability of one to exercise visitation Even under the best of circumstances and rights. parent supportive where the custodial is of a continuing relationship Thomas, between the child (quoting the trial court). and parent, the noncustodial the nature of have who desires to Although studies terests of recent seek better life for herself the children issue of reloca specifically addressed the

not area; geographical in a the child’s par different tion, they post-divorce have addressed maintaining meaningful interest in relation- complex is relationships and the ent-child parent; ship with the noncustodial the non- Fam.L.Q. creates. See sues relocation maintaining 1996). parent’s interest (Summer pg. 30 No. 311-12 Vol. child; meaningful with the re discussing Dr. Judith Wallerstein’s finally, protecting the state’s interest search, Not to Move article “To Move or of best interests the child. ...” states: justify changes in attempts Keeping in mind these interests and In their cases, judges have our careful examination of this custody in based on relocation cases, prior leading court’s cases from other seemingly applied a irrebutta- sometimes jurisdictions, concerning recent literature and continu- presumption frequent ble divorce, recognition children of that our at the core ing to both lies access mobile, society highly we fashion a stan- Therefore, is it interests. of the child’s best trial can dard which our courts resolve clearly important very is state disputes. relocation body research of social science cumulative support presump- custody does this not First, adjustment proof psychological the burden of is [¶ tion. While consistently on the custodial to show that of the custodial North child’s removal of child from the state of to be related to the been found interests par- Dakota is consistent with adjustment, the noncustodial that of any of our child. We do overrule is the amount ent has not. Neither prior regard. law in this do not case We visiting parent consis- of the noncustodial hereby a request the view that adjustment. endorse tently the child’s related to jurisdiction presumptively should leave the [Emphasis original]. pre approved, nor do we subscribe to in Dr. is no evidence Wallerstein’s There right sumption against the to remove a minor many years, including the ten work Rather, require we the trial courts of child. year longitudinal study, or in that fifteen state, considering requests to move when research, frequency visit- any other Dakota, apply of North a child out spent ing or of time with the non- amount analysis to facts of following four-factor growing- over the child’s being the primary concern each case with years significantly good up related best interests of the child: in the child or the adolescent. outcome advantages prospective 1. The The of Pro- research [Footnote omitted]. parent’s improving yielded Furstenberg has sim- fessor Frank life, quality of and child’s showing be- findings, ilar no connection frequency of visits tween the noncustodial integrity parent’s 2. of the custodial good [Footnote omitted]. outcome. relocation, considering whether motive it is to defeat or deter 305, 311-12, Fam.L.Q. pg. 30 No. Vol. 1996). (Summer Thus, Dr. we conclude from deci- data and from this Wallerstein’s court’s par- integrity 3. of the noncustodial Thomas, supra, that the noncustodial sion move, opposing the motives for ent’s develop a rela- right to maintain and parent’s opportuni- realistic there Whether tionship the child can be satisfied provide an ty which can ade- for visitation to in- schedule modification of the visitation fostering quate preserving basis frequent peri- less but more extended clude relationship with ods time. allowed, and the child relocation is comply every dispute, that each will likelihood 32] In relocation in- visitation. try competing with such alternate to accommodate the considering prospective advantages the advantages the of the move are substan- move, solely the court not limit shall itself tial. opportunities enhanced economic the for D’Onofrio, 365 at 30. A.2d We reiterate that but also assess other sought good gain faith and to tangible less benefits of For the relocation. legitimate advantages for par- example, may the reason for relocation be a ent and the child must not simply be denied supportive desire to close be to a extended because visitation cannot continue the ex- family, pursue opportunities, educational See, pattern. e.g., isting D’Onofrio, 365 A.2d improved or physical seek an and emotional 29; Auge Auge, at environment which to raise the child. (Minn.1983); Effinger Effinger, examples These are not intended to ex- E.D.1996). (Mo.App. S.W.2d haustive, emphasize but we that trial the weigh trial court must and balance these court must consider non-economic advan- factors based on the facts of each case. No tages likely improve which are the child’s one factor to be dominant factor and a that parent’s general and quality life. impact minor may in one ease be the

We recognize improvement that dominant factor in another. general quality of life for the custodial ordinarily indirectly will benefit the child. begin analysis [¶38] We of Ju- request lene’s move Arkansas with Tell Secondly, satisfy the trial court must by applying the first factor articulated itself that the motion to relocate moti- is not prospective above—the advantages of the simply vated a desire to defeat the visita- improving move in tion of the noncustodial quality child’s of life. hamper opportunity of the noncustodial to maintain a relationship with [¶39] Neither nor any James Julene has child. court should determine de- family in North If Dakota. allowed to move gree to which the custodial com- will Arkansas, fifty Julene would be within ply arrangements with visitation after sister, miles of her and a as well as a move. parents. two-hour drive from James’ In the original proceeding, divorce the trial court Third, [¶36] the court must consider the incorporated by partial reference the tran- motives oppos- script of proceedings original of the hearing ing the move and determine whether 6,1995, into its December Memorandum De- opposition legitimate is based on a desire to transcript, cision Order. parent-child maintain the relationship, or specifically noted, trial court is an “[t]here whether at other motives are work. advantage having your the other hand to family your support system. close and I Finally, trial court deny don’t an advantage.” it’s The trial must determine whether a visitation schedule clearly court advantage found it would be an can reasonably be devised which provide can to Julene and Tell to have extended maintaining develop foundation by. close ing parent-child between child and parent. agree We At original time divorce Jersey the New in D’Onofrio, proceeding, employed. Julene was not She supra, which stated: requested permitted she be to move back to Tell, The court should Arkansas with not insist that and the trial court the advan- denied tages request. move be sacrificed As a reason for denial time, opportunity stated, for a life any better com- “I see don’t lifestyle great fortable mother chil- economic benefit of the move. Mrs. solely dren be forfeited weekly to maintain Stout has plans indicated that she to have a believe, father where type, reasonable home business of I some alternative visitation is available and where can probably she do that same business vantage justify separation to Tell and [of in Arkan- Dakota that she can here in North why precisely That is hearing James].... on Julene’s Court At the time of the sas.” employed support as an of child and motion Julene was ordered combination removal working part spousal support a law firm in to allow to [Julene] office assistant order benefits, hour, area, per stay with such making time at no in this if she a even were $6.00 insurance, holidays, or paid sick relatively as health low income.” managing the firm’s An affidavit from leave. trial court used [¶ 48] The rehabilita position will partner states that Julene’s attempt to spousal support tive not to restore soon, downsizing to the eliminated due economically disadvantaged spouse in to hearing, had firm. At the time of the Julene status, dependent primarily keep to but Ju- position with full-time J.V. been offered lene in the of North Dakota for that state Manufacturing Springdale, Arkansas. Ju- period necessary it felt to establish the was position supplied documentation that lene parent-child between James and insurance, hour, paid per offered health $8.50 support theory Tell. The of rehabilitative is leave, sharing holidays, profit paid sick disadvantaged spouse to meet allow plans. retirement becoming financial needs while self-sufficient. 6, 1995, In its dated December Fenske, order See Fenske trial noted: Rustand, (citing Rustand v. (N.D.1986)). trial N.W.2d 806 The court’s economically disadvantaged by is [Julene] decision, however, emphasis in its was not on though of the divorce. Even she reason enabling indepen Julene to reach financial degree, was not em- a master’s she has The in its dence. court’s statement Memo hearing ployed at time of divorce 24, 1996, May Decision and randum Order of has not worked in the August, She regarding support spousal its award justice criminal and it will take a field of why precisely “[t]hat is court ordered length of time before she is considerable support spousal sup combination child earning capacity to rehabilitate her able stay port [Julene] in order allow Indeed, it is approximate [James]. that of area, relatively making were even she unlikely so. [Julene] that she will ever do directly contrary is low income” intent majority devoted of her time has the. spousal support assisting of rehabilitative — and she raising since his birth [Tell] disadvantaged becoming spouse finan place in his from followed career [James] independent. cially developing rather her own place than career. advantages that Julene would gain move to Arkansas do not if allowed to 24, 1996, May [¶ In its Memorandum merely include a raise. The benefits $2.50 Order, the trial court stated: Decision joba such as health working at with benefits proposes that she move Arkan- [Julene] vacation, leave, insurance, paid and re- sick job pays accept in order to sas $8.50 plus opportunities future advance tirement per currently employed hour. She is at The trial court to Julene. substantial per In its Memorandum Deci- hour. $6.00 completely ignore discount these cannot 6, 1995, sion the Court indi- of December improve significantly which will benefits support that the amount of child cated and, ultimately, Tell. quality life for Julene spousal support combined should be suffi- best interests This court considers child’s cient to care for reasonable and [Julene’s] inextricably quality interwoven with expenses, necessary assuming that she can whom the life of the custodial least, earn, wage during minimum whom the child relies lives being is rehabilitated. the time she emotionally. issue is not whether the minimum making more than [Julene] wage find minimum parent can employment. wage her current Quality life includes job Dakota. in North just state, things happiness, as not such health on to “the addi- The trial court went stability. per ad- financial tional hour sufficient $2.50 45] We believe the trial erred schedule and the likelihood that each analysis comply of the economic and non-eeonom- its will with such alternate visitation. noted, advantages proposed ic the previously very of move. As James has been exercising court failed to consider the benefits a net- in court-appointed active his visi- family of provide work close members would with tation Tell. He has seen the sev- advantages. and other non-economic eral times each week for a few at a hours time. There have been a few occasions when We turn our attention [¶46] now to Tell, James has for time asked extra with factor, integrity of second Julene’s mo- generally agreed. During Julene has In original pro- to tive relocate. divorce sepa- the time Julene James have been ceeding, expressed a desire Julene to return rated, encouraged she relationship has be- Arkansas near her pursue to be tween James and Tell. Ju- denying After her career. She has made her known wishes move, request initial lene’s the trial court throughout proceedings, these and there is stated, specifically “I’m not afraid that Mrs. she no evidence that made this decision on a Stout would not follow court I order. “whim”, deny or that motives were to ” think she follow would court orders.... James’ visitation. investigated transportation Julene [¶50] move, contemplation of the Julene Springdale between Grand Porks and before living arrangements for made herself and made her motion she for removal. of- She Springdale day Tell and obtained care expenses fered share the of trans- Tell’s placement for Tell. took Julene all reason- portation on a basis. 50/50 steps arrange able comfortable and sta- for ble life herself and Tell if the move were [¶ 51] Based on the trial court’s statement permitted. attempt did She not to “sneak indicating parties the belief that would Arkansas, off’ to but has made her wishes cooperate, parties’ past continue to and the throughout proceedings, known these cooperation, we determine that exist there everything necessary has done facilitate opportunities for ar- substitute visitation smooth transition a full life in Arkansas. rangements party likely and that each will The record reflects James has exercised comply with such alternate visitation. his visitation and that Julene has been fully cooperative therein. Julene has not agree [¶ 52] We with the statement and, fact, denied James visitation per- Appeals made the Missouri of Court for him mitted additional visitation with Tell Eastern involving District: case “[e]ach request mutual agreement. There the relocation of children be resolved cooperate is no evidence that she would particular on the facts case of the rather than with the visitation schedule should she move rules, rigid application of and the best to Arkansas Tell. always para interests the child remain the mount concern. Where or all most of the We next turn integrity

[¶48] to the weigh factors above favor resisting James’ motives in the move. We parent, the trial court’s refusal to allow nothing find in the record which leads tous parent to move constitutes revers by any- believe that James was motivated hand, ible error. On the thing other other where the relationship than concern his parent, factors favor neither with his son. favor the recog- We reiterate this court’s importance maintaining nition of trial court’s denial of relationship parent’s request between the noncustodial move will be (citations omitted).” child, Effinger, recognize but also affirmed it is case, expect present unrealistic to at 912. be S.W.2d clearly weigh the same after divorce. factors favor of Julene. finally analysis 49] We turn though

[¶ 53] our We note even trial court opportunities apply today, for an alternate visitation did not the factors enunciated I, however, cannot agree decision would reach same this findings clearly are erroneous factors of trial court’s interests” apply “best we vague, inter- undifferentiated best under 14-09-06.2 to record N.D.C.C. I would therefore remand ests standard. careful review Based case. record, trial court to reconsider the motion persuaded that the trial we light specific articulat- denying standard relocation. erred majority’s opinion. in the

ed emphasize that motions [¶ We William A. Neumann [¶ 59] change of are not motions for to relocate in custody. The factors to be considered in custody are change enumerated SANDSTROM, Justice,

motions dissenting. contrast, § 14-09-06.2. N.D.C.C. correctly ap- trial 60] Because the [¶ relocate, primary physical cus motion state, I longstanding law plied of this made, already been tody decision affirm. would If custody is not the issue.7 brings change motion ¶ asserts, majority trial The relocate, the non response to a motion to by decision induced an errone- court’s “was prove there has parent must first law,” proceeds pro- view of the ous change in significant circumstances been principles as law of this nounce state second, compels, in the best change rejected by principles this repeatedly Court — child, custody. of the interests contrary express legislative intent. Murphy, McDonough 539 N.W.2d (N.D.1995). of the minor child is Relocation long-established of this state 62] law [¶ significant change in and of not itself has been: the extent Id. at 317. To circumstances. custody and pertaining “In matters “change in applied the trial court primari- rights, we are concerned visitation case, of this circumstances” test to facts ly interests the children with misapplied it the law. of either and not the wishes desires is judgment of the lower court 55]

[¶ parent.” RE- hereby and the ease is REVERSED Muraskin, 336 N.W.2d Muraskin an trial court to establish MANDED the Burich, (N.D.1983) (citing Burich v. on the appropriate visitation schedule based (N.D.1981)). to enter amended of the child and an judgment accordance herewith. love “Minor children are entitled insofar companionship parents of both their possible is and consistent with as this WALLE, C.J., and VANDE welfare. MESCHKE, J., concur. reason, privileges “For NEUMANN, Justice, dis- concurring and must granted to the non-eustodial senting. merely privilege as a be viewed right of child which parent, but as a agree majority I that the [¶57] custodian.” not to be subverted of the achieving the best interests goal of given child in relocation cases be Rizzo, Gardebring v. guide trial content to specific and instructive (internal (N.D.1978) ci- quotation marks and dispute reso- and afford more uniform courts omitted). tations I the standard articulated lution. believe an- Long principles these were step after majority important first is an law to nounced, legislature amended providing content. custody may necessary in a primary recognize tion of in which 7. We that there cases decree, physi- parents, pursuant parent. share to a final one to relocate motion custody equally original an determina- cal protect better the interests of the child to that it is in the best interests of the child See, regular frequent Burich, have visitation with the to do so. Burich v. (N.D.1981). parent. According non-eustodial state, to the Min- N.W.2d 82 In our legally utes Senate Committee on Social recognizable right Wel- there is a Affairs, 2, 1979, fare and Veterans March visitation between a child and the non Stenehjem provisions Senator testified which is considered to 1585, amending House Bill N.D.C.C. 14- be in the best interests of the child. See 09-07, dealt with 14-05-22(2), N.D.C.C.; actions of custodial Subsection Gar Rizzo, (N.D. which defeat visitation: debring v. 269 N.W.2d 104 1978). instance, Florida, “For mother moved to “ father remains North statutory Dakota —his ‘The recognition of visita- rights still remain seeing every same tion between a child and the non- impossible two weeks but almost since she plac- consistent with they moved to Florida. What did was ing the burden parent the custodial defeat the order of the court.” moving show that the child to another state is in the child’s best interest. We Yet, majority here the happi- substitutes the presumption conclude that there is no ness and parent comfort of the custodial as a parent’s that a custodial decision to primary deciding factor in whether the custo- change the child’s residence to another parent permitted dial should be to move the state is in the child’s best interests. We child. unpersuaded that it would be consis- ¶ majority, starting pur- tent with our or ap- statutes otherwise ports to “fashion a allegedly standard” propriate con- adopt presumption, such a prior sistent with the decisions of this Court. and we refuse to do so. fact, standard enunciated the ma- dissenting justices “The accord far less

jority dissenting positions reflects the specifi- importance relationship of noncusto- cally rejected by this Court in McRae v. dial and child than the trial court Carbno, (N.D.1987): 404 N.W.2d 509-511 permit and would concededly a that parent] “[The custodial invites us to negative impact has a on that relationship Olson, overrule our decision in Olson v. long so as the custodial articulates 361 N.W.2d 249 in ‘legitimate which we reasons’ for the move. We do concluded that in this state there is not not believe legislature that enacted presumption a in favor of 14-09-07, N.D.C.C., Section with the intent change decision to the child’s accomplishing placing little more than a residence. We decline the invitation. responsibility upon ministerial the courts Olson, supra, we pre- concluded that a signing change in of residence orders for sumption in favor of par- asking. That is the ultimate conse- ent’s decision to quence child’s resi- dissenting justices’ of the interpre- dence would be inconsistent with our provision tation of the for it would be state seldom, law. We indeed, reiterate and reaffirm our that a custodial position Olson, on this issue as stated in could not anticipated hoped- articulate supra, 361 N.W.2d at 252: advantages at the location of the de- sired move.

“ We believe the ... presumption is in 14-09-07]_ consistent with [Section “Being good parent very difficult. At least cases such Being as this where good parent role, in a noncustodial given has parent/child been with the severely contact lim- has rights, decree, exercised visitation extremely custo ited difficult. dial securing the burden of legislature past decisions of an order for a change of residence of the placed high have level of im- child to another state demonstrating portance on the of children to have only by daily contact with the custo- par- of both companionship the love by meaningful visi- also dial but will interfere Any act which ents. parent.” the noncustodial tations with closely scruti- relationship should that at 87. dis- suggests Levine Justice nized. ‘[i]ndeed, should vindictiveness sent in his dis- Meschke also states “Justice exclusive, target of if not primary,

be the ‘change does not of residence sent contrary to simply That is statute.’ any right change the of visitation itself inter- forth the best which sets our caselaw court cannot way parties that the or the child, of the not the motive of the ests contrary adjust.’ position is amply That primary issue parent, as the the enactment of Sec- very reason for change in resi- deciding or not whether 14-09-07, imply that N.D.C.C. To tion permitted. should be the child dence of no adverse effect on there will be given substantial must be The trial court par- relationship between approve deciding whether to discretion of the child the child as a result ent and move, practical for all might which such 1,000 away is to moving more than miles perhaps elimi- severely distort or purposes of life. As Justice overlook the realities rela- parent/child nature nate the opening line of her Levine concedes child and the noncus- tionship between dissent, saying any goes without ‘[i]t parent. todial im- “negatively will change of residence pact” where a father-child of cus- many the determination “In cases noncustodi- loving and attentive father is decision, the extremely close tody is an parent.’ al the best interests of that the determination by placing the child served child will be testimony has heard the “The trial court parent takes into con- custody of one the It has parties the involved. and observed rights liberal visitation parent] sideration custodial [the determined parent. In some other granted establishing proof not met her burden very might well have a trial court will be child] cases of [the that the best interests parent’s cus- permission child in the other to move placed by granting her served custody, if, awarding tody time of of the trial court at the The decision to Seattle. proposed upheld had known unless we are convinced the court should be are not planned to move from has been made. We that a mistake custodial convinced, and, accordingly, the order so state. trial court is affirmed.” dissent, Meschke, points in his “Justice case and that this is not out have legislature and this Court 14-09-06.2, forth in Section the factors set importance to the child recognized the N.D.C.C., used to determine cannot be regular visitation: axiomatic child. It is interests of the and com- to the love are entitled “Children custody and visita- issue of child that the regularly parents, and of both panionship Burich, In Burich v. interrelated. tion are integral part is an visitation scheduled involving a case N.W.2d 82 healthy between developing a custody, change of and not a visitation parent.” non-eustodial a child and the Erickstad, writing for a Chief Justice Iverson, court, said: unanimous Iverson v. Yet, (N.D.1995) Gardebring). (citing “ best interests determining ‘In in- child’s supplants majority apparently child, court must consider the trial of both companionship in the love and terest 14-09-06.2, listed Section

factors happiness of the parents with factors N.D.C.C. We believe ¶ writing 44: parent, need for a recognize a child’s impliedly best inter- the child’s court considers relationship with both his “This meaningful quali- inextricably with the interwoven is met ests father. That need mother and his ty of life of the custodial -with could not articulate antici- whom pated the child lives and whom hoped-for advantages at the location emotionally. move”). child relies The issue is not of the desired whether the custodial can find a majority [¶ 68] frequent “finds” less wage job minimum in North Dakota. to be Quality of things life includes such as sufficient, despite contrary holdings. happiness, just health and financial See, (“The e.g., legislature McRae stability.” past decisions of this placed court have parent’s Is it sufficient if “hap- high importance level of on the piness” promoted by being would be done children to have the love companionship ex-spouse dealing with visita- parents”). of both tion? reject [¶ I 69] would the action of the analysis 66] its of the “best interests majority reversing previous decisions of parent,” majority invades nullifying this court and the intent of the province of the trial courts order to legislature, and would affirm the well-rea- so, “find doing facts.” In it dons the hat of soned decision of the trial court. advocacy, ignoring job that the new is not in parent’s field, career ignoring [¶ Dale V. Sandstrom suspect credibility of an affidavit from attorney/employer job that her is to be ended, ignoring proximity the loss of (his father)

the child’s next closest relative

be closer to more distant relatives. majority

[¶ 67] The “finds” the custodial making motives in the move to be

“pure” ignoring while previous pro-

nouncements of ability this Court that the

articulate a non-vindictive motive for the See,

move is not our e.g., standard. McRae (“for seldom,

at 510 indeed, it would be that a

Case Details

Case Name: Stout v. Stout

Court Name: North Dakota Supreme Court

Date Published: Apr 1, 1997

Citation: 560 N.W.2d 903

Docket Number: Civil 960150

Court Abbreviation: N.D.