Dissenting.
The best interest of a child is obviously a critical factor in' determining whether a custodial parent may relocate. It should not, however, be the only factor considered by a court making such a decision. Thus, I would find that the trial court erred by determining whether Ms. Weiland could move based solely on application of the best interest of the child test (BIOC test) found in I.C. § 32-717(1). Therefore, I respectfully dissent.
Section 32-717(1) states in part:
In an action for divorce the court may, before and after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children. The court shall consider all relevant factors____
As I stated in Roberts v. Roberts:
basing a decision about a custodial parent’s right to relocate solely on the BIOC test overshadows and essentially eliminates consideration of the custodial parent’s protected liberty interests in choosing where to live, work, and raise children. Thus, determining where a custodial parent may live, work, and parent solely based on the BIOC test constitutes an unnecessary and improper interference with the interests of custodial parents, not a “necessary and proper” direction “in the best interest of the children.” I.C. § 32-717.
138 Idaho 401, 407, 64 P.3d 327, 333 (2003) (Kidwell, J., dissenting). I would hold that custodial parents have a presumptive right to relocate that may be rebutted if the court found that the move would substantially derogate the best interest, of the child or if the purpose of the move were shown to be interference with the non-custodial parent’s rights. Id. This rule would enable courts to account for the best interests of the child without unnecessarily and improperly interfering with the lives of custodial parents. Because the court applied the incorrect standard in determining whether Ms. Weiland could move, I would vacate the trial court’s order and remand this case for further proceedings.