dissenting. Today the Court decrees that a divorced parent with sole physical and legal rights and responsibilities for two young children may not exercise her judgment to relocate with the children to another state. The penalty for exercising her discretion, which the Court upholds, is loss of custody of her children. Because this decision is directly contrary to our recent holding in Lane v. Schenck, 158 Vt. 489, 614 A.2d 786 (1992), to the explicit statutory meaning of a custodial parent’s rights and responsibilities, and to common sense and sound public policy, I must dissent.
I.
Just two years ago, we reversed and remanded a trial court’s decision on a petition to modify custody for failure to show “sufficient deference to the [custodial] mother’s decision to relocate.” Lane, 158 Vt. at 491, 614 A.2d at 787. In Lane, the father moved to modify custody when the mother announced her intent to attend law school in Iowa. Because the mother stated that custody was her first priority, the trial court did not modify custody. Instead, opining that the mother could just as well attend law school closer to home, the court conditioned the mother’s right to retain custody on her remaining within a certain distance of the father’s home. The order essentially enforced the status quo to preserve the father’s visitation schedule. The court’s rationale rested on its conclusion that it was not in the best interests of the children to move to Iowa because of the adjustment demands of a new community, the mother’s busy schedule and what the trial court viewed as a deteriorating relationship between the children and their father.
Despite our own well-established appellate standard of review, that we will not substitute our own judgment for that of the trial court on custody and modifications of custody, Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988), we reversed because we could not “condone a process that substitutes the judgment of a court for that of the custodial parent merely because the court would have done something different if it had been the parent.” Lane, 158 Vt. at 495, 614 A.2d at 789. In other words, when a parent has sole physical and *107legal rights and responsibilities, Lane teaches that it is the custodial parent who is entrusted to make decisions regarding where the family will live. Lane was supported by the Legislature’s determination that a parent’s rights and responsibilities include those “related to a child’s physical living arrangements, parent child contact, education, medical and dental care, religion, travel and any other matter involving a child’s welfare and upbringing.” 15 V.S.A. § 664(1). See Bancroft v. Bancroft, 154 Vt. 442, 448, 578 A.2d 114 ,118 (1990) (when custody is not joint, “it is in the children’s best interest for one parent to have ultimate responsibility for directing their lives”).
The Lane decision expressed sound reasons for deference to the custodial parent’s decision to move. It obviates reconsideration of the custody issue, it maintains the children in the family unit to which they have belonged since custody was initially decided, it minimizes judicial interference with family decisions, and it places the decision with the person best able to consider the child’s needs — the custodial parent. Lane, 158 Vt. at 495, 614 A.2d at 789.
As we recognized in Lane,
[ajfter dissolution of a marriage, a new family unit, consisting of the custodial parent and children, is created. Allowing the new family to flourish is in itself conducive to the best interests of the children involved. . . . An appraisal of the custodian’s decision to relocate should take into account both the family’s needs in the short term and the family’s benefit in the more distant future.
Id. at 498, 614 A.2d at 791 (citations omitted). Thus, preserving the location of the family in the name of stability should not necessarily be the ultimate goal of the family court.
In view of the interests that are implicated, and the fact that a change in custody, not location, involves a “violent dislocation,” Kilduff v. Willey, 150 Vt. 552, 555, 554 A.2d 677, 680 (1988), the Lane standard for modifying custody when the custodial parent is relocating is high. “[T]he noncustodial parent must prove that the children’s best interests would be so undermined by a relocation with the custodial parent that a transfer of custody is necessary.” Lane, 158 Vt. at 499, 614 A.2d at 792. It is true, as the majority emphasizes, that the best interests of the children is the overriding standard in custody decisions, but the majority fails to recognize that Lane was intended to provide guidance for consideration of the best interests of children in relocation circumstances, and that a best interests determination should not be grounded on the disruption inherent in any relocation. *108Today’s decision trivializes Lane, rejects the sound public policy on which it was based, and provides zero predictability to litigants and lawyers about what to expect from the family court if custodial parents want to make new lives for themselves in a location other than that of the marriage.
Here, the majority uses the abuse of discretion standard to uphold exactly the kind of family court interference with lifestyle decisions that we condemned in Lane as an abuse of discretion. Although the majority gives lip service to the significant burden that a parent moving for modification of custody must meet, in fact, no burden was imposed at all. Rather, the mother was impliedly labeled a wrongdoer because relocating meant she was abandoning a “co-parenting agreement.” The majority then upholds the view of the family court that because co-parenting was in the best interests of the children, the mother’s actions in withdrawing from that arrangement were, per se, not in their best interests. Thus, it was the custodial parent who was required to justify her retention of custody, while the noncustodial parent was required to do no more than show that moving to another state would be disruptive to the children’s lives.
II.
Today’s decision cannot be justified on the ground that the mother waived her right to contest whether there was a substantial change in circumstances by entering into a final divorce order containing the following provision:
If either party moves more than fifty (50) miles from their current homes in Thetford and Norwich, it shall constitute a change in circumstances so the Court may reconsider existing parental responsibilities and visitation.
(Emphasis added.) This provision appears in what the majority characterizes as a “co-parenting agreement,” which is merely a partial final order that was apparently based on a stipulation óf the parties. It quite clearly awards physical and legal responsibilities, or custody, to the mother, and parent-child contact, or visitation, to the father. It sets forth the visitation schedule, which permitted visitation with the father from Wednesday evening to Saturday evening on alternate weeks, and Thursday evening to Sunday evening on the remaining weeks. But there is no language in the order that discusses “co-parenting” at all, and certainly not in the sense that the mother’s custodial rights were to be diminished by the fact that the father *109would have visitation three days per week. In short, it was not a joint custody arrangement.
It is simply not fair to imply a waiver of the mother’s custodial rights on the language of this provision. First, the language is poorly drafted and does not indicate clearly that custodial rights will be implicated if a move is made. Indeed, the mother sought legal advice as to the meaning of the provision before she made the move and was told that visitation only would be reconsidered. Second, as reflected in the legal advice, the order incorporated two inconsistent concepts— one is that the mother is the custodial parent with all those areas of discretion ordinarily accorded to custodial parents by the statutes, including the right to choose the residence of the family — and the other is that the mother’s custodial rights with respect to choice of residence are waived. Waiver should not be implied lightly, especially in view of the interests at stake here. Eastman v. Pelletier, 114 Vt. 419, 423, 47 A.2d 298, 301 (1946) (“A waiver is the intentional relinquishment of a known right, and since it involves both knowledge and intent, and its essence is a voluntary choice the party must have acted with a knowledge of all the material facts affecting his [or her] rights.”).
Moreover, by allowing parties to define “real, substantial and unanticipated change of circumstances,” the majority is taking what is essentially the unprecedented step of allowing litigants to confer subject matter jurisdiction on a court.1 The family court is empowered to modify a custody order only “upon a showing of real, substantial and unanticipated change of circumstances.” 15 V.S.A. § 668. The majority alters this test for modification by (1) concluding that any such provision has a statutory presumption of validity pursuant to 15 V.S.A. § 666, and (2) applying a “reasonable benchmark” test to determine the validity of the provision. The presumption is not supported by 15 V.S.A. § 666, which creates a “best interests” presumption for parental agreements regarding rights and responsibilities in the first instance — when the parties are divorcing — and does not apply to the circumstances of modification. Nonetheless, under the majority’s scheme, the presumption lowers the statutory threshold showing of “real, substantial and unanticipated *110change of circumstances” by allowing the parties to select a definition and then requiring the family court to uphold the definition if it is “reasonable.” Thus the test collapses the two-tier inquiry of changed circumstances and best interests that 15 V.S.A. § 668 mandates.
The existence of a “real, substantial and unanticipated change of circumstances,” however, is a jurisdictional prerequisite to consideration of the merits of a modification petition. Kilduff v. Willey, 150 Vt. at 553, 554 A.2d at 678 (such a finding is “a critical threshold finding, without which the court is precluded from considering the ‘merits of the parties’ claims’ regarding the best interest of their child” (quoting Hayes v. Hayes, 144 Vt. 332, 335, 476 A.2d 135, 137-38 (1984))); see also McCormick v. McCormick, 150 Vt. 431, 436, 553 A.2d 1098, 1101 (1988) (under 15 V.S.A. § 661(e) (current version at 15 V.S.A. § 660), which permits modification of a child support order only upon the same showing required for modification of a custody order — “real, substantial and unanticipated change of circumstances” — “[t]he presence of a change in circumstances is a jurisdictional prerequisite to consideration of a petition to modify”). And it is axiomatic that “jjjurisdiction over the subject matter of a suit cannot be conferred by agreement or consent of the parties when it is not given in law.” Suitor v. Suitor, 137 Vt. 110, 111, 400 A.2d 999, 1000 (1979) (emphasis added). The majority abandons this longstanding principle even though doing so was unnecessary in light of its conclusion that even without consideration of the stipulation, father had met his burden.
This dicta, if followed, has several egregious implications in the child custody field. First, it undermines the very purpose for the high jurisdictional threshold for modification — to give “stability to a child’s life.” Kilduff, 150 Vt. at 553, 554 A.2d at 678. Second, it creates the anomalous result that parties can stipulate to the existence of changed circumstances but cannot stipulate to their absence. See White v. White, 141 Vt. 499, 503, 450 A.2d 1108, 1110 (1982) (parties may not bargain away court’s authority to modify child support order). Third, this potential recognition of stipulations to changed circumstances injects a new bargaining chip to be used as leverage in divorce and custody negotiations. Finally, such provisions, even if written in language that applies to both parents, as here, are not mutually enforceable. Instead, the noncustodial parent is free to move beyond the mileage limit specified to seek better or different opportunities without the custodial parent’s consent and regardless of the impact on the child. Meanwhile, the custodial parent has to restrict the family’s movement to enable the noncustodial parent to exercise *111parental rights or risk losing custody. For all of these reasons, the court deciding a modification petition should make an independent evaluation of whether the moving party has established a real, substantial and unanticipated change of circumstances before reaching the merits of the modification petition. Absent such a change, the modification court should not reach the question of whether a change of custodian is in the best interest of the children.
III.
Assuming that father met the threshold showing for reconsideration of custody, he still had to meet the Lane standard for modification — whether the relocation so undermined the best interests of the children that a transfer of custody was necessary. I would hold that it was an abuse of discretion to conclude that father met his burden.
It is abundantly clear from the family court’s findings and conclusions of law that, despite individual deficiencies, the mother and the father are both fit parents. What qualities each may lack as a parent are filled by the strengths of the other. All things being equal, this made the custody decision a difficult one. Unfortunately, it also tended to overemphasize as wholly negative all of the disruptions associated with relocating the family away from one of the parents. But there is nothing in this record to suggest that the children would not be safe and well cared for in Milford, Pennsylvania, or that they would not make an adequate adjustment to new schools and circumstances.2 In short, the father did not come close to demonstrating anything other than that the move would be disruptive to his visitation. I do not imply that interference with visitation is to be disregarded out of hand, or that this father would not have suffered an emotional loss if he had not won custody of the children for whom he deeply cares, but interference with visitation is not the standard by which we ought to judge the custodial parent’s relocation. Unless we expect to start granting modification orders routinely, there must be something more than an interruption to visitation, even when that is substantial.
*112The majority cites four factors that it claims differentiate this case from the ordinary consequences of relocation, and therefore justify the family court’s interference. None of these reasons withstands analysis or meets the burden established in Lane. First, it found that the existence of the “co-parenting” relationship was the most important reason to uphold the trial court’s decision. The majority reasons that because the father had three days of visitation per week, which may be more than the usual contact between the noncustodial parent and the children, the loss of parent-child contact from relocation is therefore greater. Whether or not this is a “greater loss” than in other cases, it is an irrational justification for depriving the children of the mother, who had the children four days per week.
The majority also contends that the visitation granted to the father meant that the father had demonstrated he was capable of handling custody. No one disputes in this case that both parents are fit custodians. The question is whether we should transfer custody from one fit parent to another simply because the parent with the legal right to decide where the children live effectuates a change. Obviously, if the father were not fit, the family court would have had no option to disapprove the mother’s decision. Because the father is fit does not justify its intrusion here.
Most importantly, however, the notion that significant visitation imposes an obstacle to the custodial parent’s right to move supports the worst possible public policy. We start with the proposition that if parents can agree to significant parent-child contact, it is obviously beneficial to the children. But, after today’s decision, it would be poor legal advice to suggest agreement to such an arrangement to a custodial parent, unless that parent is confident that he or she will want to remain in the location of the marriage until the children reach majority. We recently upheld a family court decision in which exactly the opposite public policy was advanced to support a mother’s move to take advantage of an educational opportunity, despite the fact that the parties had informally agreed that the father could have parent-child contact fifty percent of the time. Dunning v. Meaney, 161 Vt. 287, 290, 640 A.2d 3, 5 (1993). In Dunning, the father argued that he had become, de facto, a joint custodian and, therefore, a move out of state was a change in circumstances of such magnitude that custody should be modified. The family court disagreed, concluding that to “find a change in circumstances on the basis of increased contact would penalize [the mother] for her willingness to allow the contact.” Id. at 290, 640 A.2d at 5. Today, this Court apparently takes the *113opposite view in using significant parent-child contact as an obstacle to relocation.
Moreover, an agreement to share care of the children works only when parents can agree. When the arrangement is falling apart, as it was here, it makes little sense to rely on it as a continuing relevant factor.
Second, the majority also points to the unusually strong role played by the paternal grandparents in the lives of the children. Actually, the father’s ability to handle custody was greatly enhanced by his parents, upon whom he was quite dependent psychologically and financially. Since the separation, the grandparents have shouldered the major custodial burden of the father’s visitation. It is wonderful when children are able to draw on their relationship with grandparents as a resource in their lives, but to use a relationship with the grandparents to justify the transfer of custody from a fit mother, who has cared for these young children their entire lives, and, indeed, was the primary caretaker until the co-parenting arrangement,3 cannot be our law.
Third, the majority emphasizes the manner in which the mother made the move. To be sure, the mother should have discussed the move with the father first, but should the penalty for that single omission be loss of custody? Although couched in terms of best interests of the children, that is the only conclusion one can draw after reading the record. In reality, even with notice to the father, the father would have moved to modify custody and we would have the same issue before us — whether the children’s best interests were so undermined by a move to Milford, Pennsylvania that custody should be transferred. The penalty does not fit the crime.
Fourth, the majority points vaguely to “continuing instability in the lives of the children, as well as financial hardship.” There is nothing in the record to support the statement that the children’s lives with their mother would be unstable in Pennsylvania. They were enrolled in school and daycare, their emotional and physical needs were being met, and they received medical care when they were sick.
As to financial instability, the court’s reference is to the mother’s decision to move to Pennsylvania for a job that paid $5.25 per hour *114and to the loss of a mortgage subsidy on the marital home.4 This conclusion is exactly the kind of second-guessing of lifestyle decisions in which the court should not engage. Was not this mother entitled to make the decision that a $300 per month mortgage subsidy was not worth remaining in a small town, continuing largely in the circumstances of the marriage, in the milieu of a religion that she rejected,5 in disagreement with a former husband, in favor of a new start with a new partner, necessarily in a new location? Did not the family court engage in the same kind of “you are better off in Thetford” analysis as the family court in Lane? Even more troubling is the implication left by the majority opinion that we will support a mother’s move to attend law school, but we will penalize a mother’s attempt to terminate her dependence on public assistance by taking a low-paying job.
In spite of what I view in this case as unwarranted interference with an appropriate family decision by a fit parent, I recognize that the custodial parent’s decision to relocate is not absolute. Certainly, family courts should not support the parent’s exercise of discretion to relocate if it is motivated solely by an intent to frustrate the noncustodial parent’s right to visitation. See 15 V.S.A. § 665(b)(5) (ability of parent to foster contact with other parent is a factor in custody decision). Nor should the custodial parent’s decision to relocate the children to a place where their physical safety is seriously jeopardized be without review in the family court. Neither of those circumstances is present here. It is true that relocation often involves *115disruption in visitation, other local relationships and school. Unless Lane is completely meaningless, however, the fact that children will be uprooted from a community and visitation may be altered significantly cannot provide the justification for modification. We accepted in Lane that the pros and cons of the inevitable disruption are for the custodial parent to weigh, not the family court. In my view, the father produced insufficient evidence to warrant a change in custody from one fit parent to another.
Finally, I am troubled by the Court’s willingness to abandon so quickly its effort in Lane to set some guidelines on the exercise of discretion in relocation cases, especially in light of the fact that such cases are proliferating. The lack of standards inhibits appellate review and does not provide the kind of predictability and stability that lawyers and litigants should expect from recent decisions. Without guidelines, we will quickly produce a hodgepodge of decisions with no consistent thread other than the “trial court did not abuse its discretion.” The reality of this kind of decision-making is that very similar cases will result in very different decisions, and a custodial parent’s ability to relocate will depend on the vicissitudes of individual judges. Because of factual differences in cases, we will always be forced to tolerate some inconsistency in decision-making, but we ought not to create the circumstances in which it will flourish.
The Court tries to sidestep this effect by saying that the parties’ agreement was embodied in a court order and it is the order that the Court upholds. deBeaumont v. Goodrich, 162 Vt. 91, 96 n.2, 644 A.2d 843, 846 n.2 (1994). This is a distinction without a difference. Courts routinely adopt the final agreement of the parties in the final order, as was done in this case.
The majority refers to a finding of the family court indicating it was concerned about the use of corporal punishment by Mr. Diefenbach, with which the mother disagreed, but was apparently willing to allow. In fact, the finding acknowledges that a single incident discussed in the testimony did not result in corporal punishment being administered and that the concern was that the mother would not exercise “independent judgment.” To the extent the same finding refers to “two occasions,” unspecified, it is completely without support in the record and, I presume, simply a mistake.
The majority makes reference to the fact that the parties here “co-parented” even before the divorce. The record reveals, however, that the mother was unquestionably the primary caretaker until the divorce. She cared for the children while the father was at work and when the father was regularly away for other activities, such as church meetings.
The testimony showed that the mother was on welfare because she was unable to find work in Vermont for some months. She filed applications with several banks in the area and with Grand Union. No work was available and she did not want to remain on welfare. She had begun a relationship with a new partner, John Diefenbach, who lived in Milford, Pennsylvania. The mother decided to look for work there. After spending a couple of days going to every store and business in town, she was offered and accepted a job as a bank teller at $5.25 per hour.
During the marriage, the mother and father lived with their two children in the small community of Thetford. The father’s parents lived in a nearby community, and the family belonged to the Christian Pentecostal Church, of which the father’s father is pastor. The church tenets are built on a belief in the literal interpretation of the Bible, including the tenet that women are subject to the authority of their husbands. Although the father and his parents attempted to downplay this tenet in their testimony, they reaffirmed, on cross-examination, that in a dispute between husband and wife, the husband’s authority is absolute. Although the mother was a member of the church, she came to reject this religion, and these religious differences contributed to the breakdown of the marriage. Moreover, the mother testified that she was dominated by the “male prerogative” in her marriage and was isolated “because of the church.” She feared that her son and daughter were being raised in a religion where women were not given the same autonomy as men.