(dissenting in part).
I concur with the majority opinion insofar as it remands to the trial court for consideration of the four conditions set forth therein. I would hold, however, that there is a constitutional right not to be compelled to leave this country, based on the right to travel and as a fundamental incident of citizenship. See, e.g., Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). Once outside the territory and jurisdiction of the United States, a citizen is deprived of the guaranty of the rights and liberties accorded by our constitution. This consideration is particularly applicable in this situation where it is possible that the respondent could gain custody of Thomas in West Germany and prevent his return to the United States.
Moreover, the mere fact that a citizen is a minor does not deprive him of his constitutional rights. Specifically, if Thomas demonstrates the maturity, capacity and intelligence to make an informed decision, he should be allowed to do so. See Belloti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). Alternatively, if Thomas is not found to be mature enough to make the decision, then I would hold that, under these facts, where there is a contest between the natural parents, the trial court must appoint an independent guardian ad litem to represent the boy’s interest. Thomas is admittedly bright and articulate, yet the majority denies him the ability to decide for himself. When this case first reached us, Thomas was only 10 years old. He is now 11 and will be 12 later in the year. I would remand the question of Thomas’ ability to decide for himself, based on considerations of maturity, intelligence and age, to the trial court. If the trial court still is of the opinion that Thomas is incapable of deciding for himself, I would require the trial court to appoint an independent guardian under Minn.Stat. § 518.-165 (1980).
I should also add that I cannot see how it is in the best interests of either the child or his parents to force Thomas to visit West Germany at this time. The father is able to visit Thomas in this country, as he has done. Moreover, as Thomas becomes wiser and more • mature, he may wish to travel to West Germany to visit his paternal grandparents and his father. If he is forced to do so now, however, the mandatory nature of his travel may extinguish his desire to visit West Germany in the future. Rather than help build an enduring relationship with his father, forcing the issue at this time might have the opposite effect and result in resentment.