concurring specially.
[¶ 31] I concur in the result reached by the majority. I write separately because of the continuing difficulty we have in the application of N.D.C.C. § 14-09-07, as this Court has interpreted it.
[¶ 32] Section 14-09-07, N.D.C.C., states:
A parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree. A court order is not required if the noncustodial parent:
(1) has not exercised visitation rights for a period of one year; or
(2) has moved to another state and is more than fifty miles [80.47] kilometers from the residence of the custodial parent.
The limited purpose of this statute is to safeguard the visitation rights of the noncustodial parent. Stout v. Stout, 1997 ND 61, ¶ 12, 560 N.W.2d 903. Under the statute a custodial parent must get judicial permission to move the child to another state if the noncustodial parent objects to the move. Goff v. Goff, 1999 ND 95, ¶ 5, 593 N.W.2d 768. This Court has decided that to obtain judicial permission, the burden is on the custodial parent to prove the move is in the best interests of the child. Burich v. Burich, 314 N.W.2d 82, 84-85 (N.D.1981).
[¶ 33] I believe the burden imposed by this Court on the custodial parent, the burden of proving the move is in the best interests of the child, is misplaced. As this Court has stated, a request to move is not a redetermination of custody. Stout, 1997 ND 61, ¶ 54, 560 N.W.2d 903. In fact, custody is not the issue in a motion to relocate. Id. at ¶ 54. Yet, under Burich, this Court requires the custodial parent prove their decision to move is in the best interests of the child, a standard otherwise applied only in initial determinations of custody. See Zimmerman v. Zimmerman, 1997 ND 182, ¶ 7, 569 N.W.2d 277; Hendrickson v. Hendrickson, 553 N.W.2d 215, 216 (N.D.1996).
[¶ 34] I believe a much more realistic approach to motions for relocation is a presumption that the proposed move is in the best interests of the child, coupled with an opportunity for the noncustodial parent to submit opposing evidence, if desired, to try to overcome the presumption.
[¶ 35] Minnesota has a relocation statute very similar to N.D.C.C. § 14-09-07. Stout, 1997 ND 61, ¶ 15, 560 N.W.2d 903. Section 518.175(3), Minn.Stat., states:
The custodial parent shall not move the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, when the noncustodial parent has been given visitation rights by the decree. If the purpose of the move is to interfere with visitation rights given to the noncustodial parent by the decree, the court shall not permit the child’s residence to be moved to another state.
The Minnesota Supreme Court has found a presumption favoring removal of the child is the best approach for motions for relocation, for several reasons:
First, in most cases it would obviate de novo consideration of who is best suited to have custody, an issue which has already been resolved once by the courts. *489Unless the noncustodial parent could establish by a preponderance of the evidence that removal would not be in the child’s best interests, permission to remove would be granted. Second, it would tend to maintain the child in the family unit to which he or she currently belongs, and minimize judicial interference with decisions which affect that family unit. Third, it is grounded in Minnesota’s statutory scheme. Finally, it places the decision with the person best able to consider the child’s needs.
Auge v. Auge, 334 N.W.2d 393, 399 (Minn.1983).
[¶ 36] This Court has previously considered presumptions in the relocation context. In Olson v. Olson, 361 N.W.2d 249 (N.D.1985), this Court rejected the idea of a presumption. Id. at 252. We held placing the burden on the custodial parent was consistent with the statutory right of visitation rights between the noncustodial parent and the child. Id. This Court also distinguished Auge, asserting Minnesota’s statutory provisions were significantly different from our own, id., a difference I fail to see.
[¶ 37] It is my belief, nineteen years after our decision, that Olson should be overturned. Recent legislative enactments clearly indicate a legislative policy in favor of continuity and stability in the existing custodial arrangement. See N.D.C.C. § 14-09-06.6 (1997). Furthermore, our recent relocation cases direct our courts to carefully tailor visitation schedules to preserve the noncustodial parent’s right to foster and develop a relationship with the child. Keller v. Keller, 1998 ND 179, ¶ 16, 584 N.W.2d 509; Matter of B.E.M., 1997 ND 134, ¶ 20, 566 N.W.2d 414. These recent developments suggest our analysis in Olson is outdated, and that in fact, today we are closer to Minnesota’s underlying statutory and public policy than we were when Olson was decided. Clearly, the noncustodial parent’s right to visitation can be protected even if there is a presumption favoring a proposed move.
[¶ 38] Application of N.D.C.C. § 14-09-07 has caused confusion and difficulty for both parents and courts since Burich injected a best interest standard and placed the burden of proof on the custodial parent. Recent attempts to clarify the law seem unavailing. In Stout, this Court attempted to bring some clarification to these cases by stating whether a move was in a child’s best interest could be determined by an analysis of four factors:
1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. Whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.
Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903. At the time, Stout’s factors seemed to a majority of this court to provide the illumination these cases desperately required. However, a look at cases following Stout reveals the difficulty our courts continue to have in applying the statute. Including this case, this Court has reversed and remanded four cases applying the Stout factors, with three of the cases directing the district court to grant the motion to move. See Goff, 1999 ND 95, ¶ 22, 593 N.W.2d 768 (reversing and remanding for a redetermination of two factors); Keller, 1998 ND 179, ¶ 20, 584 N.W.2d 509 (reversing and remanding directing district court to allow the move and establish visitation); Paulson v. Bauske, 1998 ND 17, ¶ 17, 574 N.W.2d 801 (reversing and remanding with directions to enter judgment allowing the move). In addition, we re*490cently attempted to clarify the Stout factors in Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144 (restating the fourth Stout factor).
[¶ 39] When this Court decided Stout, the express goal was to give trial court’s more instructive and specific guidance in applying N.D.C.C. § 14-09-07. Stout, 1997 ND 61, ¶ 28, 560 N.W.2d 903. In the year and a half since Stout, I am afraid our goal has not been accomplished.
[¶ 40] This Court should move toward a presumption that the proposed move is in the best interests of the child. I believe such a presumption would not be contrary to the purposes of N.D.C.C. § 14-09-07, and would be in harmony with our State’s legislative policy. By implementing such a presumption we would be establishing clear guidance for our courts without threatening the well-being of the children. I also encourage the North Dakota Legislative Assembly to consider legislatively creating such a presumption as a part of N D.C.C. § 14-09-07. If this Court erred in Burich and Olson, then such an amendment would be a great service to divorced parents, eliminating one more opportunity to renew a lingering dispute that hampers their efforts to get on with the rest of their lives.
[¶ 41] William A. Neumann