dissenting.
I am taken aback by the majority’s sudden and sweeping declaration that all1 stipulated, court-approved provisions in dissolution decrees providing for a future change of child custody from one parent to another are unenforceable. Not only does this significant revelation come out of the blue —neither party raised any question of unenforceability either *712at the trial or appellate level — it represents a policy choice that should be left to the legislature. I also reject what appears to be the underlying theme of the opinion, namely, that the holding will somehow serve the best interests of children.
There is absolutely no legal basis for holding that a trial judge lacks the authority to authorize a future change of custody.2 In fact, the existing law is directly contrary. ORS 107.105 specifically provides that the court has the power to award custody of a child to one or both parents. ORS 107.137 provides that, in doing so, the court shall give primary consideration to the child’s best interests and welfare. Without question, these sections fully authorize the court to award custody first to one parent and then, after a specified time, to the other, if the court finds that such an arrangement is in the best interests of the child.
Surely, what caught the majority’s eye in this case is the fact that so many years of uninterrupted custody passed before the preordained transfer was to take place. If, instead, the stipulated decree had provided for one parent to have custody for the first four years while the noncustodial parent obtained a college education, and a reversal of custody for the next four years so that the other parent similarly could obtain an education, I doubt that the majority would have held the arrangement unenforceable. Unfortunately, however, rather than limit its discussion to the facts of this particular case, the majority — apparently bent on playing a legislative role — proclaims all change of custody provisions unenforceable. Why make a pronouncement that dooms any and all such custody arrangements, regardless of whether both the parents and the court are satisfied that such an arrangement is in the best interests of the children? Certainly, our role is not to force parents into a bitter custody fight, which I fear may, only too often, be the result of the majority’s holding.
Accepting that a stipulated, court-approved provision for a future change of custody is enforceable, if it has been determined to be in the best interests of the child, the question becomes what happens when, as here, one of the parents later *713seeks to modify the provision? (Obviously, such a provision is subject to modification on the motion of either parent. ORS 107.135(1)(a)). Historically, the case law provides that, before the trial court may exercise its power to modify a decreed custody award, it must determine that (1) there has been a change of circumstances since the time of the court’s last resolution of custody and (2) the change will be in the best interests of the child. With respect to both determinations, the party seeking to modify the custody arrangement, as provided for in the original judgment, bears the burden of proof. Here, mother seeks to modify the judgment. Accordingly, the burden of proof is hers.3
In this case, the scheduled change requires uprooting the child out of a community that he has resided in for ten years. Because the parties lived in the same locality when they stipulated to a change in custody, this uprooting was not anticipated and, therefore, represents a substantial change in circumstances. Accordingly, the sole dispositive factual determination in this case is whether the move is in the best interests of the child.4 See Smith and Smith, 290 Or 567, 624 P2d 114 (1981); compare Brink and Brink, 75 Or App 665, 706 P2d 1015, rev den 300 Or 451 (1985). Therefore, because it is the trial court’s duty to make that determination in the first instance, which it did not do in this case, I would remand and instruct it to do so.5 I believe that this is the way this case *714should be resolved, and that is why I dissent.
Richardson and Newman, JJ., join in this dissent.The majority’s assertion that its holding is limited in application to the custody provision in this case is nonsensical. Clearly, the net effect of the majority opinion is to render unenforceable any and all provisions providing for a future change in custody, regardless of whether the change is scheduled for one month or ten years after the date of the original judgment and regardless of whether the scheduled change is in the best interests of the child.
It is unnecessary at this time to determine whether the provision that permits either parent to move the court for a modification before the scheduled change in custody is imminent is enforceable. The provision requires that the motion be filed before the child’s 12th birthday. Mother filed her motion after the child’s 12th birthday.
Contrary to the majority’s assertion, placing the burden of proof on mother does not turn well-established Oregon law “on its head.” In Greisamer and Greisamer, 276 Or 397, 400, 555 P2d 28 (1976), the court noted that the general rule in modification proceedings is that the party moving for a modification has the burden of proof. Therefore, it held that, if custody has been awarded to one parent, the party seeking a change in custody (or, in other words, the party seeking the modification) must adduce evidence showing a change in circumstances and that the modification is in the best interests of the child. Here, mother seeks to modify the custody arrangement provided by the judgment.
Although we need not reach the issue here, in my opinion a change in custody from one parent to another always represents a substantial change in the child’s life that requires the court to determine whether the proposed change is in the best interests of the child if it is protested by either parent.
The net effect of the majority’s holding that change of custody provisions are unenforceable is that father is thereby transformed into the party seeking a modification. Therefore, even though the parties entered into the stipulated decree after agreeing that father would have custody after the child’s twelfth birthday, in order to hold mother to her agreement, father must show a change in circumstances in addition to proving that the scheduled change is in the best interest of the child. Not only is this result outlandish, in that mother is the one who moved the court for a modification but, given the fact that father may not have entered into the stipulated decree but for the change of custody provision, it is patently unfair to him.