Mahmoodjanloo v. Mahmoodjanloo

Decision Date15 May 2007
Docket NumberNo. 101,196.,101,196.
Citation160 P.3d 951,2007 OK 32
PartiesTammy D. MAHMOODJANLOO, Plaintiff/Appellee, v. Behrooz MAHMOODJANLOO, Defendant/Appellant.
CourtOklahoma Supreme Court

Appeal from the District Court of Oklahoma County; Patricia G. Parrish, Trial Court.

¶ 0 In post-decree proceeding brought pursuant to the provisions of 43 O.S. Supp.2002, § 112.3, a noncustodial mother objected to the custodial father's proposed move of their daughters from Oklahoma to New York. The trial court sustained mother's objections. Father's appeal was earlier retained for our disposition.


Floyd Taylor, Oklahoma City, OK, for Appellant.

Janice Logan Morrow of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma City, OK, for Appellee.


¶ 1 This is an appeal by Behrooz Mahmoodjanloo, father and custodial parent of two daughters, from the trial court's order denying his post-decree effort to relocate with his children to New York. Father argues the trial court misapplied the statutory burden of proof set forth in 43 O.S. Supp.2004, § 112.3,1 the new relocation act, and we agree. He complains of the new statute's failure to follow existing law and also challenges the statute's constitutionality. We reverse the order of the trial court for its misapplication of the statutory burden of proof, and remand the issues to the trial court for reconsideration with directions.


¶ 2 The right of a custodial parent to relocate to a distant new home with his or her child when that move is opposed by the noncustodial parent is governed by two different statutes: 10 O.S.2001, § 19 and 43 O.S. Supp.2002, § 112.3.

¶ 3 In Kaiser v. Kaiser, 2001 OK 30, 23 P.3d 278, we construed 10 O.S.1991, § 19, a statute that came to us from the Dakota Territory in 1887, as plainly and unambiguously giving custodial parents the statutory presumptive right to move away from the state with their children to establish new residence.

That statute reads:

A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child.

¶ 4 We held in Kaiser that a noncustodial parent objecting to a proposed relocation must meet the same heavy burden of proof required to satisfy the test to change a custody award set forth in Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482; that being the establishment of a permanent, substantial and material change of circumstances that directly and adversely affects a child in such a way that he or she would be substantially better off if custody were changed. Kaiser, 23 P.3d at 286. We found that neither relocation from Oklahoma nor a resulting change in the existing terms of visitation is, in itself, a change in circumstance that would justify reopening the issue of custody. Accordingly, we held that the dispositive issue in a relocation challenge is not the decision to relocate, but rather the fitness of the custodial parent and whether the evidence showed that living with that parent in the proposed location would place the child at risk of specific and real harm. Kaiser, 23 P.3d at 287.

¶ 5 We recognized the necessity of judicial deference to family decisions made by the custodial parent, and we embraced the view expressed by other courts that limiting judicial intervention in post-divorce parental decision making is an overriding goal, because to "micromanage" everyday parenting decisions by trial courts does not serve the interests of the parties, the judiciary or the public. Kaiser, 23 P.3d at 287.

¶ 6 Kaiser was handed down by the Court on April 3, 2001. On June 5, 2002, the Legislature enacted 43 O.S. Supp.2002 § 112.3,2 the new relocation statute, effective November 1, 2002. The statute focuses on a custodial parent's proposed move of a child more than 75 miles from his or her current primary residence for a period of more than 60 days.3 The custodial parent is required to give notice by mail at least 60 days before the intended move to all persons entitled to visitation and to include in it, among other things, a statement of the specific reasons for the intended relocation and a proposal for a revised schedule of visitation, if any.4 Upon meeting the statutory requirements, the proposed relocation is deemed authorized unless the opposing parent files a proceeding challenging the intended relocation within 30 days after receipt of notice.5

¶ 7 Unlike the burden of proof required under 10 O.S. § 19 to show evidence that the move would prejudice the rights and welfare of the child, the new relocation statute requires that a noncustodial parent seeking to restrain the custodial parent from relocating the child must meet only a "best interest" burden of proof.6 If a timely objection is filed, the custodial parent has the initial burden of showing that the proposed relocation is made in good faith. If that is shown, the burden of proof then shifts to the noncustodial parent to show the proposed move is not in the best interest of the child.7 In reaching its decision as to whether the relocation is in the best interest of the child, the trial court is required to consider numerous specific personal factors concerning the child, the parents, the circumstances surrounding the family and their relationship, and any other factor affecting the best interest of the child.8 A proposed relocation of a child may be a factor in considering a change of custody.9


¶ 8 Father and mother, Tammy Mahmoodjanloo, were divorced in 1993 and were awarded joint custody of their two daughters. By default order entered in 1996, father was awarded sole custody of the children and mother was given supervised visitation. Father remarried in early 2004 and in July of that year he notified mother through her lawyer that he planned to move the children with him to Buffalo, New York, to join his wife, a member of the faculty of the State University of New York School of Dental Medicine there.

¶ 9 Pursuant to § 112.3, mother filed an objection to father's proposed move of the children and requested a hearing in the matter. She alleged father had in fact already moved the children to New York and complained he had not complied with the notice requirement. She sought temporary custody of the children based on the lack of required timely notice,10 and she asserted it was not in the children's best interest to leave Oklahoma and move to New York. At the hearing, which was held under the provisions of § 112.3, the parents were the only witnesses. Issues regarding timely notice were resolved. For our purposes it suffices to state that each parent presented negative accounts of the other's personal attributes and parenting skills. Father argued the best interest of the children would be served by the move to New York and Mother contended it would not. Following Mr. Mahmoodjanloo's testimony, the trial judge found father had met his burden to show the intended relocation of the family to New York in order to be with his wife was made in good faith. The judge held an in camera meeting with the children who were then 13 and 14 years old.

¶ 10 The order of the trial court (1) found the new relocation statute, 43 O.S. Supp.2002, § 112.3 to be constitutional and applicable, and (2) sustained mother's objection to father's proposed relocation of the children's residence. In announcing her decision in favor of mother, the trial judge explained her consideration of the § 112.3 factors in her determination of whether father's evidence showed the proposed move of the children would be in their best interest.

¶ 11 Father contends the trial judge erred in her allocation of the burden of proof required by § 112.3, as she incorrectly imposed the burden upon him to show not only that his proposed relocation of his daughters was undertaken in good faith — which he did — but also to show that the move would be in the best interest of the girls.

The trial court stated:

Once that burden was established, the burden then shifted to Mrs. Mahmoodjanloo to show that it was not in the best interest of the child to, in fact, move. Or, I take that back. It was Mr. Mahmoodjanloo's burden at that point to show that it was in the best interest of the children to move. Tr. 172.

This, father points out, is directly contrary to § 112.3.K., which states:

The relocating parent has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child. (Emphasis added)


¶ 12 We agree with father. The statute plainly and unambiguously places the burden on the relocating parent to show the move is proposed in good faith and, once that burden is met, as it was in this case, shifts the burden of proof to the opposing parent to show the proposed move is not in the best interest of the children. The trial court's imposition of the added burden on father was error and we reverse for that reason. Accordingly, we find it unnecessary to consider the additional arguments urged by father which concern the constitutionality of § 112.3 and its alleged failures to follow Kaiser, to be in harmony with 10 O.S.2001, § 19, and to defer to a custodial parent's prerogative to make child-rearing decisions without state interference. Although both statutes deal with the same subject matter, no effort was made at trial to construe them together in an attempt to reconcile their provisions. Appellate courts do not make first-instance determinations of issues of law or fact which were neither raised nor assessed below. State of Oklahoma v. Torres, 2004 OK 12, ¶ 8, 87 P.3d 572, 578, fn. 15; Evers v. FSF Overlake Associates, 2003 OK 53, ¶ 18, 77 P.3d 581, 587. We also will not address the...

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