Jaramillo v. Jaramillo

• Decision Date: 24 December 1991
• Docket Number: No. 19324,19324
• Citation: 823 P.2d 299,113 N.M. 57,1991 NMSC 101
• Parties: , 60 USLW 2463 Kim Marie JARAMILLO, Petitioner, v. Francisco Filimon JARAMILLO, Respondent.
• Court: New Mexico Supreme Court

Page 299

823 P.2d 299

113 N.M. 57, 60 USLW 2463

Kim Marie JARAMILLO, Petitioner, v. Francisco Filimon JARAMILLO, Respondent.

No. 19324.

Supreme Court of New Mexico.

Dec. 24, 1991.

Rehearing Denied Jan. 16, 1992.

[113 N.M. 58] Reeves, Chavez, Greenfield, Acosta & Walker, Charlotte Greenfield, Las Cruces, for petitioner.

Hubert & Hernandez, Beverly Singleman, Las Cruces, for respondent.

OPINION

MONTGOMERY, Justice.

We granted certiorari to review the following question arising under the Constitution of the United States and involving an issue of substantial public interest:¹ Does placing the burden of proof upon a joint custodial parent to show that a proposed relocation is in the child's best interest impose unconstitutional restrictions upon the relocating parent's right to travel? Although our answer to this question is generally favorable to the petitioner's contentions, we decline to go as far as have some courts by creating a presumption in favor of the relocating parent's right to remove the child from the local jurisdiction and imposing a burden on the resisting parent to show that the proposed relocation will be contrary to the child's best interests. Nor, however, do we recognize a presumption in favor of the resisting parent, placing a burden on the relocating parent to show that the move will be in the child's best interests.

The court of appeals, in the decision here under review, Murphy v. Jaramillo, 110 N.M. 336, 795 P.2d 1028 (Ct.App.1990), stated that in joint custody cases the burden is on the party seeking to relocate to show that the relocation is in the best interests of the child. Id. at 340, 795 P.2d at 1032. We disagree with this statement, although we agree generally with other statements in the court's opinion, reviewed below, to the effect that the nonrelocating parent should not be placed at a disadvantage by having to show that a proposed move will be inimical to the child's best interests. Because we conclude that the trial court properly determined where the best interests of the child lay under the facts of this case and the court of appeals incorrectly set aside that determination, we reverse the court of appeals and remand to the district court with instructions to reinstate its order revising the parties' parenting plan and permitting the mother to move with the child to another state.

I. FACTS AND ISSUES

We refer to the parties as did the court of appeals in its opinion. Mother, Kim Marie Jaramillo, and Father, Francisco Filimon Jaramillo, were divorced in September 1987 by a decree of the District Court of Dona Ana County, New Mexico. In connection with their divorce, the parties entered into a stipulation, approved by the court as part of its decree, relating to the custody of their minor child Monica, then age three, and providing that they would share joint legal custody of their daughter. The stipulation also set out the details of a parenting plan providing for Monica's "physical custody" after the divorce and containing other provisions regarding her religious upbringing, schooling, medical care, and financial support. In general, the parenting plan provided that Monica was to reside with Mother each week, except during periods when she resided with Father, which periods basically consisted of alternate weekends, Wednesday of each week, certain specified holidays (including Father's birthday) each year, and several weeks during each summer. As the trial court found in the present proceeding, Monica did well under this joint custody arrangement, with Mother having "primary physical custody" and Father exercising frequent and extensive visitation.²

The trial court also found that Monica was a well-adjusted, normally developing, bright, happy four-year-old child, who was bonded to both parents and who had been psychologically, emotionally, and physically nurtured by both parents. The court found that Mother was the primary psychological, emotional, and nurturing parent for Monica.

The proceeding in which the court made these findings had been initiated in September 1988, after Mother informed Father that she planned to move with Monica from the city in which all three of them then lived, Las Cruces, New Mexico, to the state of New Hampshire, where her parents lived and where she believed she could find steadier and more remunerative employment. Upon being so advised, Father petitioned the court to prevent Mother from moving Monica. Several months later, Father made plans to move from Las Cruces to his home town, Socorro, New Mexico, about 150 miles from Las Cruces. He thereupon requested the court to modify the earlier custody decree to award primary physical custody of Monica to him, so that he could live with his extended family in Socorro and obtain new employment there. The court treated the case as presenting cross-motions for change of custody and heard evidence at two hearings in May and June of 1989.

At trial, the psychologist who had evaluated Monica and her parents testified that Monica identified with her mother as her primary caretaker and that it was in Monica's best interest that her primary residence remain with Mother, whether that residence was in New Hampshire or New Mexico. He also testified that an altered schedule of visitation for Father, including an extended summer visit plus holiday visits during the school year, would allow Monica to maintain and develop a relationship with him.

In its July 27, 1989 order, which contained findings of fact and conclusions of law, the court continued joint legal custody in both parents. With respect to Monica's "physical custody"--i.e., her residence--the court ordered that physical custody with Mother should continue. The court found that there would be real economic advantages and potential educational advantages for Mother and for Monica from Mother's moving to and accepting a job in New Hampshire, where her parents lived. The court found that Mother's motives for moving to New Hampshire were legitimate and acceptable and made the all-important finding that it was in the best interest of Monica that Mother remain as her primary custodial parent. The court also found that there was no evidence that a move by Monica to Socorro with Father would be better for her than a move to New Hampshire and that no evidence had been presented to show adverse effects upon Monica if she accompanied Mother to New Hampshire.

The court also made certain findings in favor of Father--namely, that he had remained current in his support obligations; had exercised visitation with Monica on every possible occasion; had remarried, completed his educational goals, and desired to return to his family home in Socorro to be close to his family; that his desire to move to Socorro was part of a well-thought-out plan which began when he moved to Las Cruces to begin his education, but with the ultimate goal of returning to Socorro; that he had taken Monica to Socorro on numerous occasions, enabling her to become familiar with the Socorro area and close to his extended family; that Monica had no substantial contacts with New Hampshire and that her move to that state would change her way of life from that of a close-knit Hispanic family to a nuclear eastern family and would amount to a major difference in the way Monica would be raised in future years; and that New Mexico was Monica's home state and she had never lived anywhere else.

In its conclusions of law, the court, while continuing "primary physical custody" of Monica in Mother, awarded Father "liberal visitation rights," including but not limited to all reasonable times when he was in New Hampshire, ten consecutive weeks in the summer, and every other Christmas during the time Monica was on Christmas vacation.

Father appealed this order to the court of appeals, contending primarily that the trial court had erred by favoring mother with the same presumption that a sole custodian enjoys in terms of such a custodian's right to relocate and take the child with her. See Newhouse v. Chavez, 108 N.M. 319, 322-23, 772 P.2d 353, 356-57 (Ct.App.1988), cert. denied, 108 N.M. 197, 769 P.2d 731 (1989). Father thus maintained that the trial court had improperly shifted the burden of proof to him to show a substantial change of circumstances and what was in the child's best interest. The court of appeals agreed, reversed the trial court's order, and remanded for a new determination of what was in the child's best interest. Murphy, 110 N.M. at 339-40, 795 P.2d at 1031-32.

On certiorari, Mother contends that the court of appeals' decision unconstitutionally burdens her right to travel and impermissibly frustrates the statutory presumption in favor of joint custody by increasing the likelihood that divorcing parents will avoid joint custody arrangements and strive instead for sole custody in each parent. Father defends the court's decision, contending that it encourages, rather than discourages, divorcing parents to enter into joint custody arrangements, and arguing that conferring on Mother a presumption in favor of relocation unfairly burdens him with the requirement of showing that a proposed move will be contrary to the child's best interests. We agree in part with each party's contentions but conclude that this record provides no reason to upset the trial court's determination as to where Monica's best interests lay. Accordingly, we remand to the district court for reinstatement of its order.

II. THE GOVERNING LEGAL PRINCIPLES

A. Joint Custody

We begin our analysis by distinguishing the present case, which involves the issue of relocation in a joint custody situation, from previous New Mexico decisions, which involved the same issue but in situations in which one parent had sole custody of the child. In the latter context, a sole custodian seeking to relocate with a child is entitled to a presumption under, inter alia, Newhouse v. Chavez that the move is in the best interests...