specially concurring.
I concur in the majority opinion, but write only to further discuss the applicability of Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007), to this case.
“The welfare and best interest of the child is of paramount importance when awarding custody.” Gustaves v. Gustaves, 138 Idaho 64, 68, 57 P.3d 775, 779 (2002); I.C. § 32-717(1). Except in cases where one parent is a habitual perpetrator of domestic violence, there is a presumption that it is in the best interests of a child to have frequent and continuing contact with both parents. I.C. § 32-717B(l), (4), & (5). Therefore, it is presumed that it is not in the child’s best interests to permit one parent to unilaterally remove a child from the community where the parents and child resided when such move prevents the other parent from having frequent and continuing contact with the child.
In Hopper, the mother unilaterally removed the child from Boise, Idaho, where the parties had resided with their child, to Montana. Her conduct prevented the father from having frequent and continuing contact with their child, and was presumptively not in the child’s best interests. Therefore, we held, “The mother should have been ordered to return the child to Idaho where the father might exercise his rights as an equal parent and have this case decided with the underlying legal and social principle that it is the best interests of a child to have a continuing relationship with both parents.” 144 Idaho at 627, 167 P.3d at 764.
In the instant case, Navarro stipulated that Yonkers could have physical custody of the child in Nevada while this ease was pending. He then moved to Hawaii. Ordering the child returned to Idaho would not have increased Navarro’s ability to have frequent and continuing contact with the child. Although the magistrate judge must ensure that Navarro had the opportunity to have frequent and continuing contact with his child, it was Navarro’s responsibility to take advantage of that opportunity.