(concurring specially).
I agree with the outcome in this case. However, I disagree as to the burden of proof required by the majority.
The decree as modified by stipulation in the instant case specifically provided that Pamela was to have custody and she was not to take the child more than 200 miles from Clinton, except for vacations, without prior court approval. According to the majority's holding, it appears she has only to apply to the court for permission to move and, if Larry cannot prove that a move would not be in the best interests of the child, Pamela will be allowed to move.
A court issues a decree to make a permanent record on which the parties can rely. See In re Marriage of Lower, 269 N.W.2d 822, 826 (Iowa 1978). The burden of proof should be on the party wishing to depart from the decree provisions. See id. Cf. In re Marriage of Frederici, 338 N.W.2d 156 (Iowa 1983). Therefore, in the instant case, Pamela should have the burden of proving why she should receive the court’s approval to move. She should not be allowed to remove the child on a mere whim because the restriction was imposed in the original decree to prevent that exact occurrence. She should be required to prove that in all the circumstances then prevailing, the best interests of the child require a vacating of the restriction so as to permit her to remove the child from the state. Proper notice and hearing gives Larry an opportunity to resist Pamela’s request by showing the desired move would not be in the best interests of the child. This standard should be applied to cases in which a dissolution decree restricts a custodial parent’s right to remove a child from a geographical area except upon court approval.
In the present ease, Pamela has not met this burden of proof. Therefore, the trial court’s decision to deny Pamela permission to leave the state was proper. For the above reasons, I would affirm.
DONIELSON, J., joins this special concurrence.