dissenting.
[¶ 30] I respectfully ' dissent. There are two main points that I feel the majority opinion has failed to adequately consider. First, there was a finding that McNett was the primary custodial parent for purposes of the motion-to-reloeate statute and, second, evén though there was joint custody, Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762 and Tibor v. Tibor, 1999 ND 150, ¶ 7, 598 N.W.2d 480 state that the motion-to-relocate statute still applies. Because the judicial referee and the district judge properly applied the law and made detailed findings that were not clearly erroneous, I would affirm.
[¶ 31] This case is governed by the terms of the divorce judgment, the court’s findings, and our past caselaw. The divorce judgment, which incorporated the parties’ stipulation, recognized that the child would reside the majority of the time with McNett. The judgment also stated that for purposes of statutes requiring a determination of custody,- McNett would be the custodial parent of the child. The divorce judgment states:
The plaintiff [Maynard] and defendant [McNett] shall have joint legal and joint physical custody of the minor'child.
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The child named in this agreement is scheduled to reside the majority of the time with defendant [McNett]. ' This parent is designated the custodian of the child solely for purposes of all other state and federal statutes which require a designation or determination of custody. This designation shall not affect either parent’s rights or responsibilities under the current parenting schedule.
[¶ 32] Approximately five years after the divorce judgment was filed, McNett requested permission from the district court to move to Branson, Missouri, with the child to pursue a new career opportu*380nity in her field of study. The judicial referee conducted a hearing on the merits of McNett’s motion to move out of state. Evidence was presented that the move would be beneficial to the mother and child. The move would have economic advantages of a higher salary and better employment benefits. McNett testified there would also be non-economic benefits of a move to Missouri. McNett would have a more flexible work schedule and would be closer to the child’s maternal grandmother. The flexible schedule and the close proximity to the grandmother will better enable McNett to provide care to her daughter.
[¶ 33] Based on the evidence presented at the hearing, the judicial referee made detailed factual findings, including:
2. The divorce decree awarded the parties joint legal and joint physical custody of the parties’ daughter, [] born [] 1996. The decree further provided that [the child] “is scheduled to reside the majority of the time with Defendant.”
3. The parties have adhered to the intent of the judgment, with [the child] spending approximately 12 nights per month with Plaintiff Jeffery J. Maynard (hereinafter, “Jeff’) and spending the remainder of each month with Defendant Christa M. McNett (hereinafter, “Christa”). In addition, even on those days when Jeff has [the child] overnight, [the child] is often with her mother during the day.
4. Although Jeff has [the child] approximately 1/3 of the nights, he has never had extended visitation with [the child], with the exception of a one-week visitation in July 1999. The 1999 visitation is the only time in the last 5 years in which Jeff has had [the child] for as long as one week.
[¶ 34] The judicial referee then made a thorough analysis of the Stout-Hawkinson factors. The court noted that McNett’s motives for moving out of state were not to deny Maynard contact with his daughter. The court also found that: “Jeff has been involved with his daughter and there is no reason to question his motives in opposing the move.” Thus, the case was properly analyzed under factors 1 and 4 of the Stout-Hawkinson factors: the prospective advantage of the move and the potential negative impact of the move. The court recognized that although a move out of state would add cost and distance to visitations making it impossible to continue the frequency of visits between Maynard and his daughter, the relationship could still be preserved by a restructured visitation schedule. After weighing these factors, the court concluded, based on the evidence in the record, that a move to Branson, Missouri, was in the best interest of the child.
[¶ 35] The father requested a review of the judicial referee’s decision. The district court, after a de novo review of the record, adopted the judicial referee’s findings. The district court came to the same conclusion as the judicial referee: a move to Branson, Missouri, was in the best interest of the child. Specifically, the district court noted that although the divorce decree states the parties are to have joint legal and physical custody, McNett had primary physical custody of the child.
[¶ 36] The North Dakota statute for relocation uses the phrase “parent entitled to the custody of a child” and does not make reference to the custody description in the relevant judgment. See N.D.C.C. § 14-09-07. The parties anticipated situations that require a custodial designation. The parties’ stipulation, incorporated into the judgment, recognized McNett as “the custodian of the child solely for purposes of all other state and federal statutes *381which require a designation or determination of custody.”
[¶ 37] Both the referee and the district judge examined the prior judgment and the facts of the custodial arrangements and both determined that McNett was, in fact, the primary physical custodian. Those findings are not clearly erroneous. Both the referee and the district judge analyzed the two applicable Stout-Haw-kinson factors. None of the findings made in the application of the factors were clearly erroneous.
[¶ 38] I do not feel it is the province of this Court to second guess the district court’s factual findings especially given our highly deferential standard of review. Instead, the majority opinion ignores the findings of the trial court, calls this “true joint legal and joint physical custody,” and requires a prior motion for change of custody. See majority opinion supra, at ¶¶ 16, 21. Not only does the majority fail to demonstrate how the court’s finding that McNett is the primary physical custodian is clearly erroneous, it declares this a situation of “true joint custody” despite the court’s findings and despite the language of the judgment: “The child named in this agreement is scheduled to reside the majority of the time with defendant [McNett].”
[¶ 39] The majority cites Oppegardr-Gessler for the proposition that “[a] custody arrangement stipulated to by the parties must be given a great deal of deference, and the parties must be bound by it to provide certainty in future disputes.” See majority opinion supra, at ¶ 10 (citing Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762). But instead of following the divorce judgment in this case, the majority ignores the very language of the stipulation, incorporated into the judgment, which supports the findings of the trial court.
[¶ 40] The second error the majority makes is in failing to recognize our past caselaw. The majority cites to both Oppe-gard-Gessler and Tibor without acknowledging that the majority opinion specifically overrules a part of each case. Even though there was joint custody in this ■case, our past caselaw has recognized that the motion-to-relocate statute still applies. The district court correctly followed the law of this State citing Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762. The district court’s order stated:
The divorce decree states that Christa and Jeff have joint legal and physical custody, but as previously stated, the Referee found that Christa had primary physical custody of [the child] allowing Jeff flexible and liberal visitation. Even when there is joint legal and physical custody, the statute governing a change of the child’s residence applies.
[¶ 41] The majority now implicitly overrules in part Oppegard-Gessler, at ¶ 12 and Tibor, 1999 ND 150, ¶ 7, 598 N.W.2d 480 to the extent that they hold: “Even where there is joint legal custody or joint legal and physical custody, the statute governing a change of the child’s residence applies.” Oppegard-Gessler, at ¶ 12 (citing Tibor at ¶ 7 (agreeing with the Minnesota Supreme Court opinions in Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996); Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn.1993))). The majority now reverses this holding of Oppegarcb-Gessler and Tibor.
[¶ 42] “The rule of stare decisis is grounded upon the theory that when a legal principle is accepted and established rights may accrue under it, security and certainty require that the principle be recognized and followed thereafter.” Dickie v. Farmers Union Oil Co., 2000 ND 111, ¶ 13, 611 N.W.2d 168 (citing Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 *382N.W.2d 599, 607 (1942)). Uncertainty, both for our courts and for litigants, is the inevitable result of the majority opinion.
[¶ 43] Rather than create uncertainty, I would affirm the district court and follow precedent. In determining whether a parent should be allowed to move with the child, this Court has given substantial weight to the actual custodial relationship, the conduct of the parties, and the divorce judgment. A review of this Court’s past decisions shows that the majority’s opinion is a deviation from our past precedent in motion-to-relocate cases. In Stout v. Stout, this Court recognized the proximity of the extended family was an important consideration in motion-to-relocate cases. 1997 ND 61, ¶¶ 39, 45, 560 N.W.2d 903. In Olson v. Olson, we recognized that a $6,500 increase in salary per year, coupled with the opportunity to work in the parents’ field of study weighed heavily on the prospective advantage of a move out of state. 2000 ND 120, ¶ 6, 611 N.W.2d 892. In Paulson v. Bauske, we recognized that although a move out of state may add cost and distance to visitations making it impossible to continue the frequency of visits between a parent and child, the relationship between the parent and child can be preserved by a restructured visitation schedule. 1998 ND 17, ¶ 15, 574 N.W.2d 801.
[¶ 44] Here, the majority ignores the importance of the extended family in McNett’s decision to move, ignores the benefits of an increased salary and more flexible work schedule, and ignores the restructured visitation schedule to preserve the relationship between Maynard and the child. Instead, the majority’s reading of the divorce judgment focuses solely on the label of “joint custody” without examining, as did the judicial referee and the district judge, how joint custody is defined in the actual agreement and how joint custody is carried out in the actual custody relationship.
[¶ 45] In Tibor, this Court followed the lead of Minnesota cases, holding that the relocation statute, N.D.C.C. § 14-09-07, applies even when “the children spend virtually equal amounts of time with both parties.” Tibor, 1999 ND 150, ¶ 6, 598 N.W.2d 480. The Tibor court anticipated this very situation and was binding precedent on the district court. In Tibor we held:
Under N.D.C.C. § 14-09-07 “[a] parent entitled to the custody of a child” must get judicial permission to change the child’s residence to another state if the other parent does not consent to the move. The trial court found “the children spend virtually equal amounts of time with both parties,” and concluded Zich “is not a parent entitled to custody” under this provision and, therefore, is not entitled to seek permission to move with the children to another state. We conclude the trial court’s interpretation and application of this statute is much too narrow.
In its January 1997 order for amendments to the judgment, the court designated Zich the “primary custodian” of the children. Clearly, she is a “parent entitled to the custody” of the children. Although both parents have physical custody of the children for significant amounts of time, under the judgment Zich has physical custody more of the time than does Tibor. N.D.C.C. § 14-09-07 “specifically requires a custodial parent to seek permission” to change the children’s residence to another state. Hanson v. Hanson, 1997 ND 151, ¶ 8, 567 N.W.2d 216. For purposes of N.D.C.C. § 14-09-07, assuming both parties had physical custody of the children for equal amounts of time, each would be deemed a parent entitled to *383custody and each would be required to seek court authorization to relocate the children out of state. We agree with the analysis of the Minnesota courts. Even where there is joint legal custody or joint legal and physical custody, the statute governing a change of the child’s residence applies. The party seeking relocation must comply with the statutory requirements. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996); Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn.1993). We conclude N.D.C.C. § ,14-09-07, applies and requires Zich to seek court approval to move with the children to Georgia.
Tibor, at ¶¶ 6-7.
[¶ 46] Tibor, like the Minnesota cases on which it relied, recognized that even cases where joint physical custody existed, either parent would be in a position to bring a motion under N.D.C.C. § 14-09-07 with the Stowh-Hawkinson factors applied to determine the outcome of the motion. The analysis was properly done in this case. I would affirm.
[¶ 47] Carol Ronning Kapsner