(dissenting).
I write separately for several reasons and respectfully dissent. The effect of the majority opinion is to negate the presumption of joint custody that our legislature has expressed as public policy in New Mexico. In addition, the majority incorrectly determines that requiring a custodial parent to remain in the state unconstitutionally burdens her right to travel. Further, even under the majority’s reasoning, this case should be remanded to the trial court for a further determination of the minor child’s best interest.
I agree with the majority that custody determinations should be based on the best interest of the minor child. NMSA 1978, § 40-4-9 (1989 Repl.Pamp.); Garcia v. Garcia, 81 N.M. 277, 279, 466 P.2d 554, 556 (1970); Urzua v. Urzua, 67 N.M. 304, 305, 355 P.2d 123, 124 (1960). The New Mexico Legislature has established a presumption that, at least initially, joint custody is in the best interest of a child. NMSA 1978, § 40-4-9.1 (1989 Repl.Pamp.). The presumption that joint custody is in the best interest of the child continues unless “there has been a substantial and material change in circumstances affecting the welfare of the child, since the entry of the joint custody order.” Id. This presumption in favor of joint custody reflects the public policy that a child’s best interests will best be served by active involvement of both parents. The presumption also seeks to preserve the parental rights of both parents without favoring one parent to the other parent’s detriment.
The court’s prior decisions have placed the burden of showing a change in circumstances sufficient to modify ah existing decree on the party seeking modification. Smith v. Smith, 98 N.M. 468, 470, 649 P.2d 1381, 1383 (1982) (modification of child support); Specter v. Specter, 85 N.M. 112, 113-14, 509 P.2d 879, 880-81 (1973) (modification of custody decree); Davis v. Davis, 83 N.M. 787, 788, 498 P.2d 674, 675 (1972) (modification of custody decree); Edington v. Edington, 50 N.M. 349, 351, 176 P.2d 915, 917 (1947) (modification of custody decree). Implicit in these decisions and our statutory scheme is the idea that the original custody arrangement was, and continues to be, in the child’s best interest. NMSA 1978, § 40-4-9.1(A). The presumption then requires the moving party to prove that the modified custody arrangement is in the child’s best interests. Schuermann v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980). The majority today retreats from this rule and substitutes a rule that places an equal burden on both parties to show that the best interests of the child would be served by their respective parenting plan after one party has decided to abrogate an existing, successful joint custody decree.1 The majority opinion rationalizes this result by stating that the equal burdens approach places each party on “equal footing” in the custody determination.
The effect of the majority opinion on the facts of this case is to abolish the legislative preference for joint custody and replace this preference with a scheme of joint legal custody and split physical custody. This custody arrangement is joint custody in name only and fails to retain many of the characteristics of joint custody as described by the statute. I believe that a parent remaining in New Mexico will have difficulty in carrying out his or her statutory responsibilities and exercising his or her statutory rights, NMSA 1978, § 40-4-9.1, when the child resides in New Hampshire or any similarly distant location. Moreover, the terms used to define the father’s rights in the instant case are not consistent with joint custody; rather, the terms used by the trial court indicate that it viewed the custody arrangement more as a sole custody arrangement with “visitation” granted to the father. While joint custody does not require an equal division of physical custody, NMSA 1978, § 40-4-9.1(L), it contemplates a sharing of physical custody in which each parent has a defined “period of responsibility” when he or she is responsible for providing for the child’s physical, emotional, and developmental needs. Id. This “period of responsibility” differs substantially in duration and quality from “visitation,” a term reserved for sole custody arrangements. Id. Moreover, as the majority recognizes, the term “primary physical custody” is not defined by the statute, Majority Opinion at 62 n. 4, 823 P.2d at 304 n. 4, and is inconsistent with a grant of joint custody. I believe that a joint custody arrangement that allows one parent to move the child a significant distance from the other parent’s location may no longer be a true joint custody arrangement.
In addition, I cannot agree with the majority that placing the burden of proof on the party seeking the modification would require a court to grant custody that would not be in the best interests of the child. The majority implies that if the burden is placed on the relocating party and that party fails to carry the burden, the result is akin to a default favoring the resisting party. This result, contends the majority, means that the resisting party gains custody even though the move is not in the best interest of the child. Majority Opinion at 65-66, 823 P.2d at 307-308.
Even if a relocating party is able to prove that an impending move is a sufficient change of circumstances to justify considering a modification of the custody arrangement, this does not imply, as the majority opinion suggests, that the move is in the child’s best interests, without more. An award of joint custody means that the trial court was satisfied (1) that both parents are fit; (2) that each parent has established a relationship with the child that is beneficial to the child; (3) that both parents desire continued involvement with the child; and (4) that the parents are able to communicate and cooperate in promoting the child’s best interest. Sanchez v. Sanchez, 107 N.M. 159, 162-63, 754 P.2d 536, 539-40 (Ct.App.1988). In addition, as the court below recognized in the instant case,
[o]ne factor to be considered in deciding whether to modify custody is the child’s adjustment to his home, school, and community. See § 40-4-9. Factors stressing stability and continuity of care and environment are of particular importance to younger children. See Schuermann v. Schuermann; Sydnes v. Sydnes [, 388 N.W.2d 3, 6 (Minn.App.1986)]. Thus, ordinarily, in joint custody cases, the burden is on the party seeking to relocate to show that the relocation is in the best interests of the child.
Murphy v. Jaramillo, 110 N.M. 336, 340, 795 P.2d 1028, 1032 (Ct.App.1990). Consideration of these factors leads me to believe that the party attempting to relocate should retain the burden of proof that the move is in the child’s best interest. Sydnes v. Sydnes, 388 N.W.2d 3, 6 (Minn.App.1986); Christopher-Frederickson v. Christopher, 223 N.J.Super. 303, 538 A.2d 830 (App.Div.1988); Seessel v. Seessel, 748 S.W.2d 422, 423 (Tenn.1988). As the majority recognizes, this burden need not be an onerous one. Majority Opinion at 64 n. 6, 823 P.2d at 306 n. 6 and cases cited therein.
Nor am I persuaded in this case that the mother’s right to travel would be unconstitutionally abridged by enforcing the initial joint custody arrangement and requiring her to either remain in New Mexico or leave her child with the child’s father. As the majority recognizes, if the state has a sufficient interest it may limit the right of a person to travel. Majority Opinion at 64, 823 P.2d at 306 (citing Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969)). Here, there are at least two compelling state interests that justify a limitation on the mother’s right to travel. First, the state has a compelling interest in insuring that a custody determination be based on the best interests of the child. This best interest is served by a true joint custody arrangement as presumed by the legislature. Second, the state has a compelling interest in protecting the parental rights of both parents. Because the state has compelling and continuing interests in custody arrangements, I see no constitutional prohibition against requiring the mother to meet her burden of proof as it pertains to the child’s best interests. If the burden is not met then the mother must either continue to reside in New Mexico or grant sole custody of the child to the father.
In light of the legislatively created presumption that joint custody is in the child’s best interests and the foregoing discussion, I would remand with instructions to the court to consider the presumption in favor of the original custody arrangement and to reweigh the evidence in light of that presumption and/or to take further testimony.
Even if I agreed with the majority’s adoption of an “equal burden” on each party, I would find it necessary to remand this case to the trial court for a further determination of the best interest of the child. The trial court incorrectly applied the presumption from Newhouse v. Chavez, 108 N.M. 319, 322-23, 772 P.2d 353, 356-57 (Ct.App.1988), cert. denied, 108 N.M. 197, 769 P.2d 731 (1989), and, in effect, required the father, as the “noncustodial” parent, to prove that the move was not in the child’s best interest.2 When the father failed to meet this burden, the trial court granted custody to the mother.
In this case, the record is equally balanced in favor of each party. For instance, the trial court found that Monica is “nurtured, psychologically, emotionally, and physically by both parents.” Further, the trial court found that “[b]oth parents have contributed equally to the physical raising of Monica and she is bonded to both. ” In addition, the trial court found that Monica “has no substantial contacts with New Hampshire” and that “a move ... to New Hampshire would be a change in her way of life ... that will amount to a major difference in the way that Monica will be raised in future years.” Finally, the trial court found that Monica was familiar with the Socorro area and “is close to the [father’s] extended family and has made numerous friends in the Socorro area.”3 The record contains substantial evidence to support these findings. I believe that the trial court awarded custody of Monica to her mother, at least in part, because of its erroneous reliance on the Newhouse presumption. I do not believe that the “interest of judicial economy,” Majority Opinion at 68 n. 11, 823 P.2d at 310 n. 11, is sufficient to override the father’s interest in being placed on an “equal footing” with the mother in this custody determination. Id. at 68, 823 P.2d at 310. Thus, even under the majority’s formulation, this case should be remanded to the trial court for further findings and a final determination of Monica’s best interest.
For the above reasons, I respectfully dissent.
. The majority states that “[wjhen parents are operating under a joint custody arrangement and one of them seeks to alter the arrangement, it makes perfectly good sense to impose a presumption in favor of the parent who wishes to continue to operate under the joint custody decree and to place on the party wishing to change the decree the burden to produce evidence that the arrangement is no longer workable and needs to be changed.” Majority Opinion at 65, 823 P.2d at 307 (emphasis added). This is not the correct standard. As discussed in the text of this dissent, the correct standard requires the moving party to prove a change of circumstances, not merely to produce evidence that a change has in fact occurred.
. As discussed above, a term such as "noncustodial parent” has no place where joint custody is granted because, under a true joint custody arrangement, each parent is a "custodial” parent during his or her respective "period of responsibility."
. Other findings also support the father’s position. For example, the trial court found that the father was current in his financial, medical, and educational obligations to Monica. He had exercised visitation on "every possible occasion ... including times when he had to take off from work or change his plans to enable him to care for [Monica]. He "has re-married, has completed his educational goals, and desires to return to [his] family home in Socorro.” This move was "part of a well thought out plan.”