dissenting.
[¶ 41] I, respectfully, dissent. I am of the opinion the trial court’s finding that factor (m), N.D.C.C. § 14-09-06.2(1), favored Nicholas Hageman was induced by an erroneous view of the law.
I
[¶ 42] A trial court may grant a change in primary residential responsibility if the party seeking the change in residential responsibility proves there has been a material change in circumstances and modification is necessary to serve the best interests of the child. Siewert v. Siewert, 2008 ND 221, ¶ 16, 758 N.W.2d 691. However, if the parties currently have joint primary residential responsibility, an original determination of primary residential responsibility is necessary. See Maynard v. McNett, 2006 ND 36, ¶ 21, 710 N.W.2d 369 (holding on a motion for change in custody, an original determination of primary residential responsibility is appropriate if the parties have joint primary residential responsibility and one party wishes to relocate). The same is true when the prior residential responsibility determination is based on the parties’ stipulated agreement. See Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D.1995) (holding “if the previous custody placement was based upon the parties’ stipulation and not by consideration of the evidence and [the] court made findings, the trial court must consider all relevant evidence, ... in making a considered and appropriate custody decision in the best interests of the children”).
[¶ 43] Hageman and Sagert’s divorce was based on a marital termination agreement. Under this agreement, the parties agreed to have joint primary residential responsibility of their child. On the motions to modify, the trial court was required, therefore, to award primary residential responsibility to the parent who would better promote the child’s best interests notwithstanding the prior residen*34tial responsibility agreement and judgment.
[¶ 44] In awarding primary residential responsibility to Hageman, the trial court found factors (a), (b), (c), (d), (e), (h), and (k) favored neither party; and factors (f), (g), (i), CD, and (l) were irrelevant. The trial court found factor (m), N.D.C.C. § 14-09-06.2(1), favored Hageman based on the parties’ stipulated agreement:
[A]t the time of divorce, both [Sagert] and [Hageman] agreed that the interests of their son would be best met if he were to continue to reside in the immediate Grand Forks area.... Nothing has been presented to convince this court that KN.H.’s best interests now require a change from the area which both parties agreed as [sic][the] time of divorce would best meet those interests. This factor favors [Hageman].
(Emphasis added.) The trial court erred by relying on the parties’ prior agreement to determine the child’s best interests and by imposing a greater burden on Sagert to prove it was not in the child’s best interests to live in the area. The trial court’s reliance on the stipulated agreement is an erroneous view of the law and an abandonment of its judicial function. It relied on the parties’ agreement as to what the parties believed at the time of the agreement would be in the child’s best interests until he turned eighteen years old. The trial court accepted this prior agreement and required Sagert to produce evidence to convince the court otherwise. This is contrary to public policy and inconsistent with our jurisprudence.
II
[¶ 45] The trial court erroneously relied solely on the parties’ prior agreement to award Hageman with primary residential responsibility of K.N.H. A trial court is not bound by the parties’ stipulated agreement in a child custody matter. Zeller v. Zeller, 2002 ND 35, ¶ 19, 640 N.W.2d 53. Further, in a child custody matter, the trial court’s “paramount concern must be the best interests of the children involved.” Mathisen v. Mathisen, 276 N.W.2d 123, 129 (N.D.1979). The trial court retains control over the rights of children and must grant primary residential responsibility in accordance with the child’s best interests. Zeller, at ¶ 18; see N.D.C.C. § 14-09-06.2(1) (providing “the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child”).
[¶ 46] In Zeller, Doni and Jenny Zeller agreed that if Jenny Zeller’s employer, the United States Air Force, transferred her outside the state of North Dakota, the transfer would constitute a material change in circumstances and transfer primary residential responsibility to Doni Zeller. 2002 ND 35, ¶2, 640 N.W.2d 53. This Court held that the trial court erred in finding the parties’ pre-divorce agreement to be “the law of the case” and binding on the trial court’s award of primary residential responsibility. Id. at ¶ 19. Relying on Zarrett v. Zarrett, 1998 ND 49, ¶ 10, 574 N.W.2d 855, which held agreements by parents prohibiting a trial court’s award of future child support payments is against public policy and invalid, this Court said custody matters should retain no less protection:
If divorcing parents may not validly limit the trial court’s power to modify child support by agreement, it follows a fori-tori that divorcing parents may not validly limit the trial court’s power to modify custody provisions by agreement. There is no reason to apply a less stringent rule in custody matters than in support matters.
Zeller, at ¶ 17.
[¶ 47] Other jurisdictions have also held that a parties’ stipulated agreement *35may not be dispositive in awarding primary residential responsibility. See Nelson v. Nelson, 263 P.3d 49, 53-54 (Alaska 2011) (holding a custody agreement cannot be enforced unless a court independently determines, at the time of enforcement, it serves the best interests of the children); Phillips v. Jordan, 241 Mich.App. 17, 614 N.W.2d 183, 186 (2000) (holding “[t]he trial court cannot blindly accept the stipulation of the parents [as to custody matters], but must independently determine what is in the best interests of the child”); Bell v. Bell, 572 So.2d 841, 845-46 (Miss.1990) (holding an agreement mandating a child should be raised in a given area is invalid and does not adequately or sufficiently provide for the care and maintenance of children); McManus v. Howard, 569 So.2d 1213, 1215-16 (Miss.1990) (holding “[t]he welfare of the children and their best interest is the primary objective of the law, and the courts must not accord to contractual arrangements such importance as to turn the inquiry away from that goal”); deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843, 846 (1994) (holding an automatic change in custody provision should not be given effect, “because it is premised on a mere speculation of what the best interests of the children may be at a future date”).
[¶ 48] The majority opinion, at ¶ 34, states that the trial court did not impose a greater burden on Sagert to overcome the parties’ prior agreement, but rather the trial court gave credence to the parties’ prior desires. I disagree. I believe the trial court gave more than credence to the agreement by completely accepting the parties’ prior agreement without independently finding whether it presently served the child’s best interests.
[¶ 49] The trial court’s finding that “nothing has been presented to convince this court that KN.H.’s best interests now require a change from the area” incorrectly presumes it was, and currently is, in the child’s best interests to remain in the Grand Forks/East Grand Forks area. The initial judgment was based on an agreement of the parties. By relying on this agreement, the trial court is now assuming, without having ever explicitly found, it is in the child’s best interests to remain in the Grand Forks/East Grand Forks area.
[¶ 50] The trial court’s reliance on the prior agreement also implies the parent who remains in the Grand Forks/East Grand Forks area will be awarded primary residential responsibility. And, only if the parent who moves away from the area can prove otherwise, it is in the child’s best interests to remain in the area. Any agreement that purports to automatically transfer primary residential responsibility on the happening of a condition is against public policy. See Zeller, 2002 ND 35, ¶ 17, 640 N.W.2d 53 (holding a trial court may not accept a pre-divorce agreement automatically transferring primary residential responsibility to a parent upon a given condition). The role of the judiciary is to determine, based on the factors set forth under N.D.C.C. § 14-09-06.2(1), whether the primary residential responsibility award best serves the child’s welfare and best interests. Seay v. Seay, 2012 ND 179, ¶ 5, 820 N.W.2d 705. In this case, the trial court erroneously applied the law by abandoning its judicial function.
Ill
[¶ 51] The parties’ pre-divorce agreement should be interpreted as a stipulation to modify the parties’ joint primary residential responsibility should either party move, not as an automatic grant of sole primary residential responsibility to one party. The agreement said,
The award of joint physical custody herein is contingent upon both parties’ continued residence in the Grand Forks, *36ND/East Grand Forks, MN area. The parties agree it would best serve the minor child’s best interests for the child to continue to live in the Grand Forks/ East Grand Forks area until he reaches the age of eighteen (18) years. For that reason, the parties agree that if either party attempts to relocate outside of the Grand Forks/East Grand Forks area with the minor child, that proposed relocation will constitute a material change in circumstances allowing either party to file a motion for modification of custody.
(Emphasis added.)
[¶ 52] Parties may stipulate as to a condition which constitutes a significant change in circumstances necessitating a change in primary residential responsibility. Dalin v. Dalin, 512 N.W.2d 685, 687 (N.D.1994). Such a stipulation relieves a trial court of the two-step analysis required in modification proceedings and allows the trial court to treat the case as an original primary residential responsibility determination. Id. at 687-88.
[¶ 53] The parties’ prior agreement is more appropriately construed as a stipulated provision for what constitutes a significant change in circumstances rather than as an automatic transfer of primary residential responsibility to the party remaining in the area. This interpretation is not only the most logical based on the language in the parties’ agreement, but also comports with our jurisprudence.
IV
[¶ 54] The trial court applied an erroneous view of the law in its analysis under N.D.C.C. § 14-09-06.2(l)(m). Although it may consider the parties’ agreement, the trial court must make an independent finding that it is in K.N.H.’s best interests to award Hageman with primary residential responsibility. Therefore, I respectfully dissent and would remand for a correct application of the law.
[¶ 55] MARY MUEHLEN MAKING