Bartosz v. Jones

• Decision Date: 16 October 2008
• Docket Number: No. 35091.,35091.
• Citation: 146 Idaho 449,197 P.3d 310
• Parties: Patrick A. BARTOSZ, Plaintiff-Respondent, v. Julie JONES, fka Julie Goodman, Defendant-Appellant.
• Court: Idaho Supreme Court

197 P.3d 310

146 Idaho 449

Patrick A. BARTOSZ, Plaintiff-Respondent, v. Julie JONES, fka Julie Goodman, Defendant-Appellant.

No. 35091.

Supreme Court of Idaho, Boise, September 2008 Term.

October 16, 2008.

Rehearing Denied December 5, 2008.

Bauer & French, Boise, for appellant. Charles B. Bauer argued.

Tucker Law Office, Nampa, for respondent. Courtnie R. Tucker argued.

J. JONES, Justice.

Julie Jones appeals the trial court's denial of her petition to modify a child custody order to permit her to move her daughter to Hawaii. We affirm.

I.

Patrick Bartosz and Julie Jones met in 1989 when Patrick was visiting his family in Idaho. At the time, Patrick lived in California and was working as a marine technician. Julie was living in Boise and raising two children from a previous relationship. In 1990, Julie decided to move to California to live with Patrick. While there, Julie focused on raising the children and Patrick served as the family's primary source of income. Patrick and Julie never married, but did have a child together. Their daughter, Sydney, was nearly ten years old at the time of the hearing in this matter.

Eventually, Patrick and Julie ended up back in Idaho. The couple permanently separated in 2001 and began an informal custody arrangement. Then, in 2004, Patrick discovered that Julie had moved to Hawaii with Sydney, which prompted him to file a petition seeking primary physical custody. The magistrate judge denied Patrick's petition but ordered Julie to return Sydney to Idaho. The judge awarded Patrick and Julie joint legal and physical custody of Sydney, with Julie having primary physical custody. He also prohibited either parent from moving Sydney's residence outside of Ada or Canyon Counties without giving sixty days' notice.

In May 2006, Patrick learned that Julie wanted to move back to Hawaii with Sydney so he filed a petition to modify the original custody order, again asking the court to award him primary physical custody. Julie wanted to move back to Hawaii because her new husband, David Jones, an officer in the U.S. Army, had been transferred there. Julie filed an answer and counterpetition requesting that the court modify the initial custody order to permit her to move to Hawaii with Sydney.

The trial court ordered a home study evaluation, which was conducted by Dr. Joe Lipetzky. Dr. Lipetzky recommended that Julie be permitted to move to Hawaii with Sydney and that the parties continue to share joint legal and physical custody, with Patrick having extended visitation during Sydney's school breaks. Dr. Lipetzky based his opinion on his observations that Julie had been Sydney's primary caregiver since birth, Sydney wanted to move to Hawaii with her mother, Julie was likely to comply with court-ordered visitation, and Sydney would likely be able to maintain a close relationship with her father.

Although the magistrate judge considered Dr. Lipetzky's report, he concluded that it would not be in Sydney's best interest to relocate with her mother to Hawaii and, therefore, denied Julie's petition to modify the custody order. The judge granted Julie primary physical custody of Sydney as long as she remains in Idaho and Patrick primary physical custody if Julie moves to Hawaii. Julie sought and obtained permission to pursue a direct appeal to this Court pursuant to Idaho Appellate Rule 12.1.

II.

On appeal, we are presented with three issues: (1) whether the magistrate abused his discretion by denying Julie's request to modify the custody order; (2) whether the custody order prohibiting Julie from moving to Hawaii with Sydney violates Julie's right to travel; and (3) whether Patrick is entitled to attorney fees.

A. Standard of Review

Child custody determinations are committed to the sound discretion of the magistrate judge. McGriff v. McGriff, 140 Idaho 642, 645, 99 P.3d 111, 114 (2004). On appeal, this Court will only overturn the magistrate's decision for an abuse of discretion. Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329 (2003).

B. The Magistrate Did Not Abuse His Discretion by Denying Julie's Request to Modify the Custody Order

Julie bases her argument that the magistrate's decision was an abuse of discretion on three grounds: (1) the magistrate failed to consider factors relevant to whether a custodial parent should be allowed to move with a child; (2) the magistrate applied a presumption against the physical separation of a child and a non-custodial parent; and (3) the magistrate made several findings and conclusions that were not supported by the evidence.

1. The Magistrate Considered Factors Relevant to Whether a Custodial Parent Should be Permitted to Relocate With a Child

Julie argues that the magistrate failed to consider factors that are relevant to determining whether a custodial parent should be able to relocate with a child. She maintains that the factors outlined in Idaho Code section 32-717 provide insufficient guidance for trial courts deciding relocation cases, which results in an "incomplete consideration of the evidence" and causes courts to apply a presumption against relocation.

In Idaho, the child's best interest is of paramount importance in child custody decisions. Hoskinson v. Hoskinson, 139 Idaho 448, 455, 80 P.3d 1049, 1056 (2003). Accordingly, the best interest standard governs decisions regarding where a child will reside. Roberts, 138 Idaho at 404-05, 64 P.3d at 330-31; see also Weiland v. Ruppel, 139 Idaho 122, 124-25, 75 P.3d 176, 178-79 (2003). The standard is set forth in Idaho Code section 32-717, which provides that a "court may, before and after judgment, give such direction for the custody, care and education of the children ... as may seem necessary or proper in the best interests of the children."¹ I.C. § 32-717(1). The statute gives trial courts wide discretion in making custody determinations, but it requires them to consider all relevant factors when evaluating the best interest of the child. Id.; see also Hoskinson, 139 Idaho at 455, 80 P.3d at 1056. Relevant factors may include the parents' wishes for the child's custody; the child's wishes; the interrelationship and interaction of the child with his or her parents and siblings; the extent the child has adjusted to his or her school, home, and community; the circumstances and character of the persons involved; the need to promote continuity and stability in the child's life; and domestic violence. I.C. § 32-717(1)(a)-(g). This list of factors is not exhaustive or mandatory and courts are free to consider other factors that may be relevant. Nelson v. Nelson, 144 Idaho 710, 715, 170 P.3d 375, 380 (2007). Courts must, however, take into account Idaho's presumption that it is in the child's best interest to maintain frequent and continuing contact with both parents, unless one parent is an habitual perpetrator of domestic violence. I.C. § 32-717B. Id. See also, §§ 32-1007, 18-4506; Hopper v. Hopper, 144 Idaho 624, 627, 167 P.3d 761, 764 (2007).

When a move would violate an existing custody arrangement, the parent seeking permission to relocate with the child has the burden of proving that the relocation is in the best interest of the child. Roberts, 138 Idaho at 405, 64 P.3d at 331. The factors enumerated in section 32-717 provide guidance in determining whether relocating is in a child's best interest. Id. at 404, 64 P.3d at 330; see also Weiland, 139 Idaho at 124-25, 75 P.3d at 178-79. In Roberts, a custody agreement provided that the mother would have primary physical custody of the children, but restricted her residence to Cassia and Minidoka Counties. Roberts, 138 Idaho at 403, 64 P.3d at 329. The mother later petitioned to have the decree modified to permit her to relocate with the children to Ada County. Id. The magistrate denied the mother's petition to relocate and ordered that custody would be transferred to the children's father if she moved. Id. In upholding the magistrate's decision, we noted that the factors enumerated in section 32-717 have relevance in determining whether the children could relocate with their mother. Id. at 404, 64 P.3d at 330. Because the trial court considered the section 32-717 factors relating to the best interests of the children, its denial of the petition to relocate was not an abuse of discretion. Id.

Courts may consider factors not enumerated in section 32-717 when deciding whether to permit a relocation. In Roberts, the magistrate also considered factors used by California and New York courts to determine whether the relocation was in the best interests of the children. Roberts, 138 Idaho at 405, 64 P.3d at 331. The factors included the extent of the child's contact with his or her parents; the parents' motives for relocating or opposing relocation; the impact the move would have on the child's relationship with the noncustodial parent and extended family; and the extent the move would enhance the economic, emotional, and educational well-being of the custodial parent and the child. See In re Marriage of Burgess, 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473, 483 (1996); Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145, 151 (1996). On appeal, we upheld the magistrate's consideration of such factors to guide his decision. Roberts, 138 Idaho at 405, 64 P.3d at 331. We reasoned that "[b]ecause there is virtually no Idaho law directly on point" the trial court did not err in considering California and New York law in reaching its conclusion.² Id.

According to Julie, the "bare terms of Idaho Code [s]ection 32-717" provide insufficient guidance for trial courts making relocation decisions and "the articulation of standards in relocation cases is appropriate and needed in Idaho." In making her argument, she relies on scholarly articles and cases, most of which support a presumption in favor of relocation.³ Julie does not propose a specific standard but, in light of the authorities she relies on, it...