Marriage of Sydnes v. Sydnes

388 N.W.2d 3, 1986 Minn. App. LEXIS 4379
CourtCourt of Appeals of Minnesota
DecidedJune 3, 1986
DocketC1-86-263
StatusPublished
Cited by16 cases

This text of 388 N.W.2d 3 (Marriage of Sydnes v. Sydnes) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Sydnes v. Sydnes, 388 N.W.2d 3, 1986 Minn. App. LEXIS 4379 (Mich. Ct. App. 1986).

Opinion

OPINION

PARKER, Judge.

This appeal is from an order denying appellant’s motion for permission to remove her children from Minnesota for the purpose of establishing residency in France. Appellant contends the trial court erred in denying her motion because she is the children’s primary caretaker, because the report of the guardian ad litem recommended such removal, and because a provision in the original judgment and decree provides for such removal. She also contends the trial court erred in failing to restructure the original custody arrangement. We affirm the trial court’s denial of permission to move the children to France and remand for establishment of an appropriate visitation schedule.

FACTS

Appellant Rita Sydnes (n/k/a Rita Chof-frut) and respondent David Sydnes married in 1974 and divorced in February 1982. Under the terms of the judgment and decree, they were granted joint legal and physical custody of their two daughters. Custody alternated between the parties weekly, with visitation during the non-custodial week “as agreed upon.” This joint arrangement worked well for three years, until appellant announced her plans to marry a French citizen and move to France.

In January 1985 she moved for permission to remove the children from the country, proposing they spend the school year with her in France and return to Minnesota to live with respondent during the summer. Respondent countered with a motion to change custody and grant sole legal and physical custody to him, with reasonable visitation to appellant for one month during the summer in France and “reasonable visitation during other times of the year in the United States.”

An evidentiary hearing was held, and the trial court found the children’s best interests would be served by remaining in Minnesota; appellant’s request to move the children, then ages nine and seven, to France was therefore denied. The trial court noted that such denial “will not change custody but merely change visitation. [Appellant] is the one who has moved to France and she is the one who will have to adjust her visitation schedule.” Respondent’s request to change custody from joint to himself was also denied, “as he failed to meet the statutory criteria and burden as required to change child custody.”

Appeal was taken from this order. Appellant’s request for accelerated review was granted by this court. Respondent does not contest the trial court’s denial of his motion to change custody.

ISSUE

Did the trial court abuse its discretion in denying appellant’s motion to remove the children from the country?

DISCUSSION

A custodial parent is presumptively entitled to remove a child to another state unless the noncustodial parent establishes by a preponderance of the evidence that the move is not in the best interests of the child. See Auge v. Auge, 334 N.W.2d 393 *6 (Minn.1983). This presumption, however, does not extend to cases where the parents have joint legal and physical custody and where both parents are equally involved with the child’s care. Hegerle v. Hegerle, 355 N.W.2d 726, 731 (Minn.Ct.App.1984).

Either a denial or a grant of permission to move the children to France will effect a change in the original joint custody arrangement. Generally, where the parties have not agreed to such a change, a court is to retain the custodian established by the prior order unless it specifically finds all of the following:

1. “a change has occurred in the circumstances of the child or his custodian;”
2. “the modification is necessary to serve the best interests of the child;”
3. “[t]he child’s present environment endangers his physical or emotional health or impairs his emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”

Minn.Stat. § 518.18(d) (1984). Modifications are difficult to justify. The standard set out in § 518.18(d) is unworkable in a situation such as this; rarely can a party show that removal from a state or the country is warranted because the children’s present environment endangers their physical or emotional health.

Relocation may be prompted by a variety of reasons. Whether for personal preference or economic necessity, the “focus should remain, where the legislature has placed it, on the best interests of the child.” Auge, 334 N.W.2d at 400. As recognized by the trial court, that is the proper standard to be applied in this unusual fact situation. Of particular importance to young children are the “best interest” factors stressing stability and continuity of care and environment. See Minn.Stat. § 518.17, subd. 1(c), (d), (e), (f) (1984); Pikula v. Pikula, 374 N.W.2d 705, 711-12 (Minn.1985). As a practical matter, the burden is on appellant as the movant to establish that removal of the children to France is in their best interests. See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981).

Though the parties’ briefs make it appear that the evidence is conflicting, the testimony presented at the hearing was relatively consistent. It is undisputed that both parties are fit and proper parents, although both have had personal problems in the past. After her divorce from respondent, appellant underwent therapy and counseling for emotional problems. Respondent had been discharged from his employment partly due to his chemical dependency problems. At the time of the hearing, however, he had been reinstated and had undergone treatment with positive results, according to the testimony of his work supervisor and his primary counselor.

Both parties are financially secure and are equally capable of providing for the children. Both will provide adequate homes. Appellant and her new husband live in a large, three-bedroom apartment in Avignon, France. Respondent was married in December 1985 and lives in the same house which the parties and their children had moved into when the oldest child was an infant. The children get along well with both step-parents.

The children have always lived in North-field, Minnesota, are good students and have many friends. They are well adjusted to their home, school, and community. Respondent’s extended family lives in the area. The children see their relatives frequently and have a close relationship with them. They are also close to appellant’s mother and spend time at her house in northern Minnesota during the summers. Respondent has a good relationship with appellant’s mother, and she has visited the children at respondent’s home.

After making numerous findings based on this evidence, the trial court concluded:

3. The children have adjusted to their home, school and community.

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Bluebook (online)
388 N.W.2d 3, 1986 Minn. App. LEXIS 4379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-sydnes-v-sydnes-minnctapp-1986.