In re the Marriage of Wittke

WARREN, J.,

concurring in part; dissenting in part.

I agree that father should be allowed to move to Utah without losing physical custody of his son during the school year. I disagree that this court should terminate joint custody in the absence of such a request from either parent.

The majority recognizes that father did not ask that joint custody be terminated but concludes that it should do so, because father contended that the parties’ custodial relationship was joint custody “in name only.” Father’s contention, however, was made in support of his argument that, despite the joint custody arrangement, he had, in fact, assumed the bulk of the parenting responsibilities. He argued that, as de facto primary parent, the form of the custody agreement should have no bearing on his right to relocate. Father’s *630argument was that the best interests of the child should dictate the correct result. In regard to the continuation of the form of custody, however, father specifically stated that he did not wish that it be terminated. In closing argument, father’s attorney stated:

“[N]either party in this case has sought to change the formal legal relationship regardless of the outcome. Although the court’s decision may affect the structure of the joint arrangement, neither party is desirous of changing the shared responsibility for their child.”

A disagreement concerning the physical custody of a child, requiring court intervention, does not necessarily indicate an inability to share responsibility for decision making with respect to all facets of a child’s well-being. The majority’s decision to terminate joint custody under these circumstances may very well inhibit properly motivated parents from seeking court assistance in resolving disputes concerning physical custody. The precedent of today’s decision gives justifiable reason for parents to fear that a right to share the responsibility for raising the parties children may be terminated altogether, despite the fact that neither desires that result. Neither party asked for the form of custody to be changed, neither wanted it. We should not always do what both parties want us to do, but we should almost never do what both agree should not be done.

Our function is to resolve issues disputed by the parties, not to decide what issues the parties could have disputed.

Richardson, Newman and Deits, Judges, join in this dissent.