McRae v. Carbno

GIERKE, Justice.

Lisa McRae appeals from a district court order denying her motion to change the residence of her daughter, Rachel. We affirm.

Lisa and the defendant Steven Carbno, Rachel’s father, were divorced in 1985, and Lisa was awarded sole custody of Rachel with reasonable visitation rights for Steven. Since that time Steven has fully exercised his visitation rights which includes having Rachel stay with him on alternating weekends.

In a case such as this where the noncustodial parent has been given and exercises visitation rights, the custodial parent must obtain a court order to change the child’s residence. Section 14-09-07, N.D.C.C. Lisa requested court approval to change Rachel’s residence to Spokane, Washington. The trial court, concluding that Lisa failed to meet her burden of showing that it would be in Rachel’s best interests to change residence, denied the motion.

Following their divorce Lisa and Steven have both resided in Fargo. At the time of these proceedings Lisa was employed as an assistant warehouse foreman. Lisa asserts that she has secured a position with her sister’s residential house cleaning service in Spokane. There she would earn approximately the same pay as she currently does in Fargo, but the new job, Lisa asserts, would provide her greater flexibility in working hours with the opportunity to spend more time with Rachel. Lisa also asserts that Rachel’s maternal grandparents have moved to Spokane and have offered to pay the cost of Lisa and Rachel’s move from Fargo to Spokane. Lisa contends that by moving to Spokane she and Rachel will have a more desirable lifestyle with greater opportunities. Steven resists Lisa’s attempt to relocate Rachel to another state, because such a move would make *509it impractical for him to continue an ongoing personal relationship with Rachel of the type that is now fostered by the weekly visitation privileges. Steven asserts that the move would negatively impact the good father/daughter relationship that Rachel and he enjoy.

Lisa asserts that the trial court’s determination that she failed to prove that the requested change of residence was in Rachel’s best interests is clearly erroneous. The trial court found that Steven has “fully exercised” his visitation privileges and that Steven and Rachel have a “healthy relationship.” The trial court obviously agreed with Steven’s contention that the change of residence would negatively impact their father/daughter relationship and concluded that “given the circumstances of this case” Lisa failed to meet her burden of showing that the change of residence is in Rachel’s best interests. We are not convinced that the trial court made a mistake and consequently we will not set aside the court’s determination. Rule 52(a), N.D.R.Civ.P.

Relying upon Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), Lisa asserts that the trial court’s denial of her motion constituted a violation of her constitutional right to travel. In Shapiro, the High Court held that the denial of welfare payments based upon an applicant’s inability to meet a durational residency requirement unconstitutionally penalized the applicant’s constitutional right to travel. However, in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the Court refused to extend the Shapiro rationale to strike down a dura-tional residency requirement for obtaining a divorce in Iowa. In so holding the Court referred to domestic relations cases as “an area that has long been regarded as a virtually exclusive province of the States.” Sosna, 419 U.S. at 404, 95 S.Ct. at 559, 42 L.Ed.2d at 543.

Several state courts have determined that limitations upon the custodial parent’s ability to change the child’s residence to another state do not violate the custodial parent’s constitutional right to travel. Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (App.1985); Carlson v. Carlson, 8 Kan.App.2d, 564, 661 P.2d 833 (1983); In re Marriage of Manuele, 107 Ill.App.3d 1090, 63 Ill.Dec. 760, 438 N.E.2d 691 (1982). Lisa has referred to no authority nor advocated any rationale which would persuade us to apply the Shapiro analysis in this case to overturn the trial court’s order.

Lisa invites us to overrule our decision in Olson v. Olson, 361 N.W.2d 249 (N.D.1985), in which we concluded that in this state there is not a presumption in favor of the custodial parent’s decision to change the child’s residence. We decline the invitation. In Olson, supra, we concluded that a presumption in favor of the custodial parent’s decision to change the child’s residence would be inconsistent with our state law. We reiterate and reaffirm our position on this issue as stated in Olson, supra, 361 N.W.2d at 252:

“We believe the ... presumption is inconsistent with [Section 14-09-07]_ At least in cases such as this where the noncustodial parent has been given and has exercised visitation rights, the custodial parent has the burden of securing an order for a change of residence of the child to another state by demonstrating that it is in the best interests of the child to do so. See, Burich v. Burich, 314 N.W.2d 82 (N.D.1981). In our state, there is a legally recognizable right of visitation between a child and the noncustodial parent which is considered to be in the best interests of the child. See Subsection 14-05-22(2), N.D.C.C.; Gardebring v. Rizzo, 269 N.W.2d 104 (N.D.1978).
“The statutory recognition of visitation rights between a child and the noncustodial parent is consistent with placing the burden upon the custodial parent to show that moving the child to another state is in the child’s best interest. We conclude that there is no presumption that a custodial parent’s decision to change the child’s residence to another state is in the child’s best interests. We are unpersuaded that it would be consistent with our statutes or otherwise appropriate to *510adopt such a presumption, and we refuse to do so.”

The dissenting justices accord far less importance to the relationship of noncustodial parent and child than the trial court and would permit a move that concededly has a negative impact on that relationship so long as the custodial parent articulates “legitimate reasons” for the move. We do not believe that the legislature enacted Section 14-09-07, N.D.C.C., with the intent of accomplishing little more than placing a ministerial responsibility upon the courts in signing change of residence orders for the asking. That is the ultimate consequence of the dissenting justices’ interpretation of the provision for it would be seldom, indeed, that a custodial parent could not articulate anticipated or hoped-for advantages at the location of the desired move.

Being a good parent is very difficult. Being a good parent in a noncustodial role, with the parent/child contact severely limited by court decree, is extremely difficult. The legislature and the past decisions of this court have placed a high level of importance on the rights of children to have the love and companionship of both parents. Any act which will interfere with that relationship should be closely scrutinized. Justice Levine suggests in her dissent that “[ijndeed, vindictiveness should be the primary, if not exclusive, target of the statute.” That is simply contrary to our caselaw which sets forth the best interests of the child, not the motive of the custodial parent, as the primary issue in deciding whether or not a change in residence of the child should be permitted. The trial court must be given substantial discretion in deciding whether to approve such a move, which might for all practical purposes severely distort or perhaps eliminate the parent/child nature of the relationship between the child and the noncustodial parent.

In many cases the determination of custody is an extremely close decision, and the determination that the best interests of the child will be served by placing the child in the custody of one parent takes into consideration the liberal visitation rights granted to the other parent. In some cases a trial court might very well have placed the child in the other parent’s custody if, at the time of awarding custody, the court had known that the proposed custodial parent planned to move from the state.

Justice Meschke, in his dissent, points out that this is not a custody case and that the factors set forth in Section 14-09-06.2, N.D.C.C., cannot be used to determine the best interests of the child. It is axiomatic that the issue of child custody and visitation are interrelated. In Burich v. Burich, 314 N.W.2d 82 (N.D.1981), a case involving visitation and not a change of custody, Chief Justice Erickstad, writing for a unanimous court, said:

“In determining the best interests of a child, the trial court must consider the factors listed in Section 14-09-06.2, N.D. C.C. We believe that the factors impliedly recognize a child’s need for a meaningful relationship with both his mother and his father. That need is met not only by daily contact with the custodial parent, but also by meaningful visitations with the noncustodial parent.” 314 N.W.2d at 87.

Justice Meschke also states in his dissent that “change of residence does not itself change the right of visitation in any way that the parties or the court cannot amply adjust.” That position is contrary to the very reason for the enactment of Section 14-09-07, N.D.C.C. To imply that there will be no adverse effect on the relationship between the noncustodial parent and the child as a result of the child moving more than 1,000 miles away is to overlook the realities of life. As Justice Levine concedes in the opening line of her dissent, “[i]t goes without saying that any change of residence will ‘negatively impact’ a father-child relationship where that father is a loving and attentive noncustodial parent.”

The trial court has heard the testimony and observed the parties involved. It has determined that Lisa has not met her burden of proof in establishing that the best interests of Steven will be served by granting her permission to move to Seattle. The *511decision of the trial court should be upheld unless we are convinced that a mistake has been made. We are not so convinced, and, accordingly, the order of the trial court is affirmed.

ERICKSTAD, C.J., and VANDE WALLE, J., concur.