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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39294

AMBER ROSE MARKWOOD,

Plaintiff-Respondent,

v.

JOSHUA ROBERT MARKWOOD,

Defendant-Appellant.

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2012 Opinion No. 20

Filed: April 17, 2012

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Second Judicial District, State of Idaho, 

Latah County. Hon. John R. Stegner, District Judge; Hon. John Judge, 

Magistrate.

Order modifying child custody, affirmed.

Thomas J. Clark, Lewiston, for appellant. 

Linda L. Blackwelder Pall, Moscow, for respondent. 

________________________________________________

LANSING, Judge

Joshua Robert Markwood appeals from the district court’s affirmance of a post-divorce 

custody order which allowed his ex-wife, Amber Markwood, to retain primary physical custody 

of their children after she moved from Moscow, Idaho to The Dalles, Oregon. 

I.

BACKGROUND

Joshua and Amber were divorced on September 25, 2009, after approximately six years 

of marriage. During the marriage, they had two daughters who were born in 2004 and 2005. 

The parties were awarded joint legal and physical custody of the children according to an agreed 

parenting plan that was attached to and incorporated into the divorce decree. Under the 

parenting plan, which was structured around the children’s school schedule, the children were to 

reside with Amber during the week in Moscow, Idaho, and with Joshua on the weekends in 

Clarkston, Washington, which is about a forty-five-minute drive from Moscow. 
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At some point, Joshua began residing with his girlfriend in Clarkston, and Amber became 

engaged to marry a man1 who resided in The Dalles, Oregon, which is a four to five-hour drive 

from Clarkston. In 2010, Amber took the children with her to The Dalles and resided there for a 

few months. She apparently attempted to adhere to the terms of the custody agreement by 

transporting the children to Clarkston to stay with Joshua and his girlfriend on the weekends. 

Joshua and Amber attempted to negotiate new arrangements for physical custody of the children

with Amber residing in The Dalles, but they failed to reach an agreement. Joshua then filed a 

motion to modify the custody arrangement and Amber presented a counterproposal for 

modification. Joshua sought primary physical custody, and Amber sought to maintain primary 

physical custody after relocating to The Dalles. While awaiting trial, Amber apparently returned 

to Moscow temporarily to allow the children to attend the fall semester of school in accord with 

the existing parenting plan.

After a trial, the magistrate court ordered that Amber would retain primary physical 

custody while living in The Dalles. In consideration of the increased travel time necessary to 

transport the children between the parents’ places of residence, the magistrate also reduced the 

frequency of the children’s stays with Joshua, but increased their duration. Joshua appealed the 

magistrate court’s decision to the district court, which affirmed. 

Joshua now appeals to this Court. He asserts that the magistrate court misperceived the 

issue at trial, abused its discretion by allowing Amber to relocate to The Dalles, and abused its 

discretion by allowing her to retain primary physical custody after that relocation.

II.

ANALYSIS

A. Standard of Review

Child custody determinations are committed to the sound discretion of the magistrate. 

Danti v. Danti, 146 Idaho 929, 934, 204 P.3d 1140, 1145 (2009); Bartosz v. Jones, 146 Idaho 

449, 453, 197 P.3d 310, 314 (2008). Therefore, a magistrate’s custody decision may be 

overturned on appeal only if it is an abuse of discretion. Roberts v. Roberts, 138 Idaho 401, 403, 

64 P.3d 327, 329 (2003). A custody award will not be regarded as an abuse of discretion so long 

 

1 During the pendency of these proceedings Amber Markwood remarried, and she 

apparently has changed her last name. 
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as the trial court: (1) recognized the issue as one of discretion; (2) acted within the outer limits 

of its discretion and consistently with the legal standards applicable to the available choices; and 

(3) reached its decision through an exercise of reason. Id.

B. The Magistrate Correctly Perceived the Issue at the Trial

Joshua asserts that the magistrate erred by viewing the salient issue to be whether it 

would be in the children’s best interests to live with Amber in The Dalles or with Joshua in 

Clarkston. Instead, he contends, the magistrate court should have “weigh[ed] whether or not the 

mother’s relocation was in the best interests of the children against the mother remaining in 

Idaho.” That is, he contends that the correct choice for the magistrate court was whether Amber 

should be allowed to move to The Dalles or should be ordered to continue to reside in Moscow 

with the children despite her desire to marry a man who lived in The Dalles. Joshua’s argument 

appears to be based on an assumption that the magistrate court could have required Amber to 

reside in Moscow because it was in the children’s best interests for their parents to live in close 

proximity. 

Joshua’s argument misperceives Idaho law and the scope of a magistrate court’s authority 

in child custody litigation. In Allbright v. Allbright, 147 Idaho 752, 215 P.3d 472 (2009), the 

Idaho Supreme Court made it very clear that in custody cases, an Idaho court may not dictate 

where a parent will live. Rather, the court may only issue orders for the custody and care of 

children in view of the location or relocation of the parents’ places of residence. In Allbright, a 

magistrate court had ordered that a divorced mother not move out of state, even if she did not 

take the minor child who was the subject of a custody dispute, because the court found that the 

mother’s move would be adverse to the best interests of the child. On appeal, the Supreme Court 

defined the issue presented as “whether the magistrate court had authority to order that Mother 

live within a specific geographical location so that both parents could continue having frequent 

contact with and physical custody of their child.” Id. at 754, 215 P.3d at 474. The Supreme 

Court held that the magistrate court possessed no such authority and consequently reversed the 

magistrate court’s order. The Court explained:

A court’s authority in a divorce action is not conterminous with what the 

court determines to be the best interests of the child. Idaho Code § 32-717(1) 

provides, “In an action for divorce the court may, before and after judgment, give 

such direction for the custody, care and education of the children of the marriage 

as may seem necessary or proper in the best interests of the children.” The statute 

authorizes the court to give direction for the custody, care, and education of the 
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child. It does not authorize a court to decide the geographic area in which the 

parent or parents of the child shall live.

. . . .

[The court] can determine with which parent the child will reside, but it cannot 

determine where either parent will reside.

. . . .

A court presiding over a child custody matter does not become a family 

czar with unlimited authority to order the parents to do anything that the court 

believes is in the best interests of the child. . . .

There is no doubt that it would be in the best interests of [the child] for her

parents to live in close enough proximity that they can both have frequent and 

continuing contact with and physical custody of her. “Idaho favors the active 

participation of both parents in raising children after divorce, which policy is 

reflected in I.C. § 32–717B supporting joint custody.” Roberts v. Roberts, 138 

Idaho 401, 405, 64 P.3d 327, 331 (2003). However, the magistrate court had no 

authority to order Mother to reside in any particular geographical location.

Allbright, 147 Idaho at 754-56, 215 P.3d at 474-76.2

Although Joshua cites the Allbright decision in his appellate brief, his argument ignores 

its holding. The magistrate court here had no authority to order Amber to continue to reside in 

Moscow, even if that would have been in the children’s best interests. The magistrate court 

correctly recognized the limitations of its authority when it stated:

The ideal situation . . . was maybe [Amber] staying in Moscow. [The 

children] were very well-adjusted here. They love Moscow. They love their 

friends here. That’s not the case that I get to decide. I have a very different case. 

That’s not--that’s not the case I--that’s not the choice I get to make.

The magistrate court correctly perceived that it did not have the authority to compel Amber to 

remain in Moscow and that the issue it must decide was whether it was in the best interests of the 

children to live primarily with Amber in The Dalles, or with Joshua in Clarkston. Joshua has 

shown no error in this regard.

 

2 In Roberts, 138 Idaho at 405, 64 P.3d at 331, the Idaho Supreme Court said that “in 

Idaho, the moving parent has the burden of proving relocation would be in the best interests of 

the child before moving in violation of a previous custody arrangement.” In Allbright, however, 

the Court clarified: “The ‘relocation’ at issue in Roberts was not the relocation of the parent. It 

was the relocation of the children. . . . Thus, Roberts is not authority for the proposition that the 

court in a divorce action has the authority to determine the geographic area in which either or 

both parents will reside.” Allbright, 147 Idaho at 755, 215 P.3d at 475. 
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C. The Magistrate’s Decision to Award Primary Residential Custody to Amber Was 

Not an Abuse of Discretion

Joshua next asserts that the magistrate court erred by allowing Amber to retain primary 

physical custody of the children, both because the magistrate overemphasized the need to 

promote continuity and stability in the lives of the children and because the magistrate’s custody 

order was not supported by substantial and competent evidence. 

Idaho Code § 32-717(1) provides that a “court may, before and after judgment, give such 

direction for the custody, care and education of the children of the marriage as may seem 

necessary or proper in the best interests of the children.” Thus, the children’s best interests are 

of paramount importance when making decisions regarding the children’s custody, including 

decisions relating to where the children will reside. Danti, 146 Idaho at 934-35, 204 P.3d at 

1145-46; Roberts, 138 Idaho at 404-05, 64 P.3d at 330-31. In determining the children’s best 

interests, courts are required to consider all relevant factors. Roberts, 138 Idaho at 404-05, 64 

P.3d at 330-31. Idaho Code § 32-717(1)(a)-(g) identifies some of those factors which may be 

relevant as including the parents’ wishes for the children’s custody; the children’s wishes; the 

interrelationship and interaction between the children and their parents and siblings; the extent 

the children have adjusted to their school, home, and community; the character and 

circumstances of the persons involved; the need to promote continuity and stability in the 

children’s lives; and domestic violence. Additional factors not enumerated in Section 32-717 

may be especially relevant when deciding whether to permit a child’s relocation, but there is no 

preapproved “laundry list of factors that [can] or should be considered” in a relocation case. 

Bartosz, 146 Idaho at 456, 197 P.3d at 317. See also Roberts, 138 Idaho at 405, 64 P.3d at 331. 

Instead, parties are free to suggest, and “trial courts are free to consider factors unique to each 

case.” Bartosz, 146 Idaho at 456, 197 P.3d at 317. 

In most cases it is presumed that an award of joint custody serves a child’s best interests, 

I.C. § 32-717B(1), (4) and (5), but that presumption is not equivalent to a presumption against a 

custodial parent relocating with a child. Bartosz, 146 Idaho at 456, 197 P.3d at 317. The 

relocating parent has the burden of proving that it would be in the child’s best interests to allow 

relocation of the child rather than to award primary physical custody to the other parent. 

Allbright, 147 Idaho at 755, 215 P.3d at 475; Danti, 146 Idaho at 935, 204 P.3d at 1146; Roberts, 

138 Idaho at 405, 64 P.3d at 331. 
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1. The magistrate did not overemphasize any factor

It is an abuse of discretion for the trial court to overemphasize any one factor when 

considering the best interests of a child. Schultz v. Schultz, 145 Idaho 859, 863, 187 P.3d 1234, 

1238 (2008); Moye v. Moye, 102 Idaho 170, 172, 627 P.2d 799, 801 (1981). All of the relevant

factors impacting the custody decision should be considered and reflected in the record. Schultz, 

145 Idaho at 863, 187 P.3d at 1238. In Schultz, the Idaho Supreme Court held that the trial court 

abused its discretion when “the only factor the court considered was the distance between the 

father and child created when [the mother] moved to Oregon” with the child. Id. at 865, 187 

P.3d at 1240. Most notably, the trial court “failed to consider [the mother’s] wishes for [the 

child], the extensive history of domestic abuse between the parents and in the presence of [the 

child], the fact that [the father] made no attempts to visit his daughter [while she was in Oregon], 

or the stability and community support offered to [the child] in Oregon.” Id. Similarly, in Moye, 

the Idaho Supreme Court held the trial court abused its discretion when “all . . . relevant factors

[other than the mother’s physical condition] impacting upon the best interests of the children 

were not duly considered or, if they were, it was not so reflected upon the record.” Moye, 102 

Idaho at 172, 627 P.2d at 801.

In stark contrast to Schultz and Moye, the magistrate in this case clearly considered all the 

Section 32-717 factors as well as additional factors specific to relocation cases. Several of the 

Section 32-717 factors played only a slight role in the magistrate’s analysis, but were 

nevertheless dutifully discussed on the record. Specifically, the magistrate considered the wishes 

of the parents and of the children, but the children apparently did not express a desire to live with 

one parent in preference to the other. The magistrate considered the interaction and relationship 

between the children and parents, finding that both girls were very bonded to the parents, and 

loved both parents, and that “both parents relate to the children in very positive ways.”3

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the magistrate did not “have any concerns with interactions or interrelationships,” this factor had 

little effect in the magistrate’s analysis of which parent should be awarded primary physical 

custody. The extent to which the children had adjusted to their school, home, and community

 

3 The children do not have any other full siblings. The magistrate did consider the 

relationship between the children and the daughter of Joshua’s girlfriend, finding that the 

relationship was important, and should continue. The magistrate also indicated that it believed 

both Joshua’s girlfriend and Amber’s fiancé were stable and positive influences on the children.
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was discussed only tangentially, presumably because the magistrate correctly recognized that 

regardless of whether the primary physical custodian would be Amber in The Dalles or Joshua in 

Clarkston, the children would be transferred out of the school they had attended in Moscow, and 

there would be disruption of their ties with their former school, home, and community. The 

magistrate also found that domestic violence was “not a significant factor” in this case. 

The magistrate discussed the remaining Section 32-717 factors at length, supporting all 

findings and conclusions with numerous references to the evidence presented during the trial. 

While the magistrate determined that both parents were generally positive influences, and that 

both could provide a good home for the children, the magistrate concluded that Amber “has been 

the most consistent and stable parent.” (Emphasis added.) The magistrate noted, for example, 

that Joshua was dilatory in his attendance of a court-mandated parenting class and the magistrate 

saw cause for concern in two incidents in which Joshua acted on his anger by becoming 

somewhat violent and breaking items, including smashing Amber’s glasses and breaking a DVD 

player that was a gift to the children from Amber. The magistrate found that Amber did not 

display the same kind of “extreme reactive behavior.” In sum, the magistrate determined that 

while both parents were capable, Amber “has provided more consistent primary care to the 

children.” 

An important factor in the magistrate’s analysis was its concern for continuity and 

stability in the children’s lives. The magistrate first considered the work schedules of the parties. 

Amber obtained work as a nurse in The Dalles, where she would be scheduled to work from 

7:30 a.m. to 3 p.m., allowing her to be home during most of the children’s after-school hours. In

comparison, the magistrate noted that Joshua’s work history “has been somewhat sporadic in 

terms of his ability to spend . . . time with the children.” He had often worked long hours during 

the weekends, which was his only time to spend with the children, so they had been left largely 

in the care of Joshua’s girlfriend. At the time of trial, Joshua had a choice of working hours. He 

could work twelve-hour shifts Friday through Sunday, either from 5 a.m. to 5 p.m., or from 

5 p.m. to 5 a.m.; or he could work from 4 p.m. to 2:30 a.m. Monday through Thursday. Any of 

these choices would have substantially limited his ability to care for and spend time with the 

children on work days. The magistrate recognized that primary residence with Joshua would 

offer the stability and continuity of a familiar residence in a familiar community, but that 

continued primary custody with Amber provided the stability of continuity with the same 
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primary caregiver. The magistrate court ultimately held that the stability factor tilted in favor of 

relocation with Amber.

After considering all the Section 32-717 factors, the court also discussed additional 

factors specific to relocation cases, including Amber’s motivation for the move, the extent to 

which the move would enhance the economic, emotional, and educational well-being of Amber 

and the children, and the likelihood that suitable visitation arrangements could preserve the 

child’s relationship with the noncustodial parent. The court found that the possibility of 

economic, emotional, and educational enhancements “really favor the move” and that visitation 

arrangements could preserve the children’s relationship with Joshua by providing that the 

children would stay with Joshua less frequently but for longer durations. 

The magistrate court thus considered a multitude of factors and did not overemphasize 

any single factor to the exclusion of all others as occurred in Schultz, nor did it emphasize any 

factor as a means of minimizing the importance of other factors that weighed against the ultimate 

decision, as occurred in Moye. Joshua’s argument that the magistrate overemphasized a single 

factor is clearly disproven by the record. 

Joshua also asks this Court to adopt an “overarching rule” that “relocation must be

weighed against the status quo of the preexisting order” because, he argues, a child’s primary 

custodial parent would otherwise always be allowed to relocate with the child. We find no merit 

in this contention. Under Joshua’s proposed rule, relocation of children with a relocating parent 

would be disfavored because it disrupts the status quo, even when maintaining the status quo is 

not an option, as is the case here. It would be irrational and pointless for the court to weigh 

relocation against an alternative that does not exist. The “overarching rule” established by Idaho 

law is that a court making a custody determination is to be guided by the best interests of the 

child. As part of this determination, courts are able to consider all consequences of the proposed 

relocation of a child, including the effect it will have on the child’s ability to interact with the 

non-custodial parent, extended family, and friends. See I.C. § 32-717(1); Bartosz, 146 Idaho at

456, 197 P.3d at 317; Roberts, 138 Idaho at 405, 64 P.3d at 331.

2. The magistrate’s decision was supported by substantial and competent 

evidence

A trial court abuses its discretion when it makes a custody award based upon evidence 

that is insufficient to allow a conclusion that the award is in the child’s best interests. Danti 146 

Idaho at 934, 204 P.3d at 1145 (2009). A magistrate’s findings of fact will be upheld, however,
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if they are supported by substantial and competent evidence and are not clearly erroneous. Reed 

v. Reed, 137 Idaho 53, 56, 44 P.3d 1108, 1111 (2002). Evidence is substantial “if a reasonable 

trier of fact would accept it and rely upon it in determining whether a disputed point of fact has 

been proven.” King v. King, 137 Idaho 438, 442, 50 P.3d 453, 457 (2002). An appellate court 

will view the evidence in favor of the trial court’s judgment and, if substantial supporting 

evidence exists, will uphold the trial court’s findings of fact notwithstanding the existence of 

conflicting evidence. Schneider v. Schneider, 151 Idaho 415, 420, 258 P.3d 350, 355 (2011). 

An appellate court will not make credibility determinations or replace the trial court’s factual 

findings by reweighing the evidence. Id.

As discussed in detail above, the record demonstrates that the magistrate’s analysis of the 

Section 32-717 factors and other relevant factors was supported by evidence presented at trial, 

including evidence regarding the children’s relationships with Joshua, Amber, and others; Joshua 

and Amber’s parenting skills and past care of the children; Joshua and Amber’s work schedules;

Amber’s work opportunities in The Dalles; and Joshua’s past violent outbursts. Joshua’s 

argument that the evidence could have supported a contrary decision--to grant primary custody 

to him instead of to Amber--does not state a basis for this Court to overturn the magistrate’s 

decision. Under our well-established standard of review we will not reweigh the evidence nor 

second-guess the trial court’s credibility determinations. 

The magistrate court recognized the issue as one of discretion, considered relevant factors 

in compliance with Idaho law, and conducted a thorough and well-reasoned analysis that is 

amply supported by the trial evidence. No abuse of discretion has been shown. 

D. Attorney Fees

Amber requests an award of attorney fees pursuant to Idaho Code § 12-121, under which 

fees may be granted when the Court is left with the abiding belief that the appeal was brought, 

pursued or defended frivolously, unreasonably and without foundation. Nelson v. Nelson, 144 

Idaho 710, 718, 170 P.3d 375, 383 (2007); Balderson v. Balderson, 127 Idaho 48, 54, 896 P.2d 

956, 962 (1995). See also I.R.C.P. 54(e)(1). Although Joshua has not been successful in this 

appeal, we do not find that the appeal was entirely frivolous. Therefore, we decline to grant 

attorney fees to Amber.
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III.

CONCLUSION

The appellate decision of the district court affirming the magistrate court’s order 

modifying child custody is affirmed. Costs on appeal to respondent.

Chief Judge GRATTON and Judge GUTIERREZ CONCUR.