(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 in the instant case specifically provided that Cheri was to have custody and she was not to take the children outside of Woodbury County, Iowa, except for brief stays, 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 Robert cannot prove that a move would not be in the best interests of the children, Cheri will be allowed to move.
A court issues a decree to make a permanent record on which the parties can rely. See State v. 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, Cheri should have the burden of proving why she should receive the court’s approval to move. She should not be allowed to remove the children on a mere whim because the parties stipulated to the restriction 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 children require a vacating of the restriction so as to permit her to remove the children from the county. Proper notice and hearing give Robert an opportunity to resist Cheri’s request by showing the desired move would not be in the best interests of the children. 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 case, Cheri has met this burden of proof. Therefore, the trial court’s decision to grant Cheri permission to leave the county was proper. For the above reasons, I would affirm.
Donielson, J., joins this special concurrence.