(dissenting).
I respectfully dissent.
I believe the majority ignores the unambiguous language of Minn.Stat. § 518.18(e) (Supp.1991):
In deciding whether to modify a prior joint custody order, the court shall apply the standards set forth in paragraph (d) unless: (1) the parties agree in writing to the application of a different standard, or (2) the party seeking modification is asking the court for permission to move the residence of the child to another state.
(Emphasis added.)
The endangerment statute set out in Minn.Stat. § 518.18(d) is not applicable because this was not a move within the state of Minnesota. Thus, the trial court did not err by applying the “best interests of the children” standard. I believe the majority erroneously accepted appellant’s argument that the “endangerment” standard of Minn. Stat. § 518.18(d) controls, and thus placed an impossible burden on respondent, namely, to prove that appellant’s request to move the children to Illinois would “endanger” the children's health. That standard could not be met as both parents have been fit parents since the dissolution to have custody and have both shared joint legal and physical custody. The trial court, following precedent, felt the proper standard when there is joint custody was the best interests of the children when one joint custodian requests permission to permanently move to another state. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 764-65 (Minn.App.1991).
The majority avoids the clear language of Minn.Stat. § 518.18(e) by claiming the statute and applicable case law do not control because this was not a “true joint custody” situation. I disagree. The parties’ initial judgment and decree of dissolution incorporated a stipulation they both signed. With respect to custody of the children, the judgment and decree provided:
That custody of the minor children of the parties * * * shall be joint and in both of the Co-Petitioners herein, and each of the parties shall have reasonable visitation rights with the said children when in the custody of the other party.
Between 1984 and 1988, appellant and respondent shared legal and physical custody pursuant to that judgment and decree. In 1988, appellant and the children moved to another town, some visitation problems arose, and in November 1988, the parties were ordered to participate in mediation. With the assistance of mediation, the parties reached a stipulation to amend the original judgment and decree. The 1990 amended judgment and decree retained joint legal and physical custody. The amended judgment and decree further provided:
If [appellant] desires to move the permanent residence of the minor children to a state other than Minnesota, she must first obtain the advance written consent of [respondent], or an Order from the Court. If the parties are unable to agree upon this issue, they will first attempt to resolve it through mediation before court action is taken.
In September 1991, appellant brought a motion for permission to move the residence of the children to Illinois. Respondent opposed the motion and, if appellant moved, asked for primary physical custody of the children. There was a three-day evidentiary hearing in February 1992 following which the court determined the best interests of the children would be served by maintaining the existing joint legal and physical custody but now changing the primary physical custody of the children to be with respondent in Minnesota.
*313The majority argues that although the parties continually call their custody arrangement “joint,” that characterization should not apply, and thus the endangerment standard rather than the best interests standard should be used. The law is clear that great weight is given to the parties on denomination of custody when that label is the product of the parties’ stipulation. See Geiger v. Geiger, 470 N.W.2d 704, 707 (Minn.App.1991), pet. for rev. denied (Minn. Aug. 1, 1991). The facts here support exactly what the parties called it, joint custody. In terms of actual days spent with each parent, including all vacations, all holidays, and all weekend visitation, respondent’s time with the children is a full five months of a year. The majority says that appellant's motion did not seek to “modify” the existing custody arrangement because it did not seek to change an arrangement of “true joint custody.” I suggest the custody arrangement pursuant to the label given it by the parties, pursuant to the label given it by the trial court in 1984 and 1988, and pursuant to the actual facts was true joint legal and physical custody.
The trial court viewed the situation as joint custody and utilized the best interests of the children standard. The trial court applied the factors of Minn.Stat. § 518.17, subd. 1 (1990), addressed each statutory factor in great detail, and made extensive findings. There is no evidence the court erred by making findings unsupported by the evidence. The trial court’s decision to deny the move out of state, to place primary physical custody with respondent, and redesign a visitation schedule taking into account appellant’s new home was not an abuse of discretion.
I would have affirmed the trial court’s decision in its entirety.