dissenting.
I respectfully dissent.
I believe that our decisions reflect a myopic view of a custodial parent taking the child to another state. N.D.C.C. § 14-09-07 says only:
“Residence of child. A parent entitled to the custody of a child shall not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, where the noncustodial parent has been given visitation rights by the decree; however, a court order shall not be required if the noncustodial parent has not exercised such visitation rights for a period of one year.”
It is not the statute, but rather this court, that places an evidentiary burden upon the custodial parent to show that it is in the best interests of the child. And, this court has supplied no guidelines about when it would be in the child’s best interest. Certainly, the multi-factored analysis under N.D.C.C. § 14-09-06.2 cannot be used; it is for “the purpose of custody.” A decision about custody was made earlier, either by the court or by the parents and approved by the court. The statute does not say that custody should be redetermined upon each change of residence. Nor, in our times, can a mere change of residence be considered a material change of circumstances which compels redetermi-nation of custody.
Yet, under the course of our decisions, the sad dilemma of a custodial parent is either to give up custody to the other parent or to not move. That is the effect which is left unstated and, thus, ignored in today’s decision. And, it is an effect accomplished without any consideration of the appropriateness of changing custody. The only supporting premise for today’s decision, extending a reason used in Olson v. Olson, 361 N.W.2d 249 (N.D.1985), is that this move would negatively impact the visitation relationship between the non-custodial parent and the child on two weekends per month. Today’s decision emphasizes that the non-custodial parent has “fully exercised” visitation and has a “healthy relationship” with the child. But, this sounds as if the best interests of the noncustodial parent are the criteria. If the best interests of the child are truly at stake, a trial court should weigh the relative importance to the child of her relationship with each parent, not just the non-custodial parent. Neither the trial court nor this decision have addressed that relative importance.
If it is in the best interests of the child to be with the present custodial parent, a matter already determined by the placement of custody, it is hard for me to understand how that best interest is suddenly subverted when that parent decides to move to another state. No doubt there are situations where a decision to change residence may call for reconsideration about the proper custodial parent, (consider, for example, Olson v. Olson, supra, since it is really a change of custody case) but this sparse record certainly does not suggest any need to reconsider custody. But, as a practical matter, change of custody is forced upon this child if the mother moves to where her sister and her child’s maternal grandparents now live. It bothers me that such a natural move can be denied without a great deal more than appears in this record.
The trial court apparently thought that the move would “negatively impact” the child’s visitation with the noncustodial parent on alternating weekends. But, that narrow focus does not recognize that visitation can easily be adjusted, as in Burich v. Burich, 314 N.W.2d 82 (N.D.1981), from very short intermittent times to one or more longer periods during vacations. Change of residence does not itself change the right to visitation in any way that the *512parties or court cannot amply adjust. As this court said in Burich:
“We believe, however, that the trial court considered the need of the children to continue a good relationship with their father and sought to foster such a relationship by allowing liberal visitation during the summer months and vacations of the children.” 314 N.W.2d at 88.
Conceivably, longer periods of visitation may better “enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child.” N.D.C.C. § 14-05-22. But at least, without evidence, no assumption ought to be made on that subject. See Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606, 614 (1984).
In Burich v. Burich, supra at 85, it was suggested that legislative history, in the form of testimony by a co-sponsor of the bill, supported application anew of “best interests of the child” criteria. My review of legislative history suggests that the remark reported in Burich was addressed to other parts of the bill that became chapter 194 of 1979 N.D. Session Laws, particularly the codification in N.D.C.C. § 14-09-06.2 of criteria for an award of custody. More apt to the change of residence provision is another statement by Representative Wayne Stenejehm, co-sponsor of the bill:
“This bill does not eliminate the possibility of someone exercising their constitutional rights to travel but would say they have to go to court to get a decree from judge which permits that travel [or] with consent of other spouse. This has worked out well in Minnesota and other states.” Minutes of Committee on Social Welfare and Veterans Affairs, March 2, 1979.
This legislative history, referring to the Minnesota experience, suggests that we ought to reconsider our ruling in Olson v. Olson, supra, which rejected the more benign approach adopted in Minnesota, Auge v. Auge, 334 N.W.2d 393, 397 (Minn.1983), “establishing an implicit presumption that removal will be permitted, subject to the noncustodial parent’s ability to establish that removal is not in the best interests of the child.” Such an approach more rationally differentiates between determining custody and defining visitation.
Therefore, I would reverse.