IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 35091 

PATRICK A. BARTOSZ, 

 

 Plaintiff-Respondent, 

 

v. 

 

JULIE JONES, fka JULIE GOODMAN, 

 

 Defendant-Appellant. 

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Boise, September 2008 Term 

2008 Opinion No. 115 

Filed: October 16, 2008 

Stephen W. Kenyon, Clerk 

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

Canyon County. Hon. Bradley S. Ford, Magistrate Judge. 

Order on child custody is affirmed. 

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. 

1
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 

2
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 

3
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. 

 

1

 By its terms, section 32-717 only applies to actions for divorce and to “children of the marriage,” however, 

because no specific criteria govern custody orders for non-marital children, we have approved application of section 

32-717 to situations where a child’s parents are not, or have not been, married. See Weiland, 139 Idaho at 123, 75 

P.3d at 177; State v. Hart, 142 Idaho 721, 723, 725, 132 P.3d 1249, 1251, 1253 (2006). 

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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, 913 P.2d 473, 483 (Cal. 

1996); Matter of Tropea v. Tropea, 665 N.E.2d 145, 151 (N.Y. 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 appears that 

she is asking us to adopt a presumption that it is in a child’s best interest to relocate with the 

custodial parent. This position is contrary to Idaho law, which requires the moving parent to 

prove that relocation is in the child’s best interest. Roberts, 138 Idaho at 405, 64 P.3d at 331. 

The only other authority Julie relies on in arguing for a more definite standard is a Florida 

Supreme Court case, which held that a custodial parent who has good faith reasons for relocating 

 

2

 However, we rejected the approach taken in Burgess and Tropea, which placed the burden on the non-custodial 

parent to show why relocation should not be allowed. Roberts, 138 Idaho at 405, 64 P.3d at 331. 3

 One of the articles concludes that a custodial “parent should be able to relocate with the child, except in unusual 

circumstances” and that usually “the child’s best interests will favor the move.” See Judith S. Wallerstein & Tony J. 

Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following 

Divorce, 30 FAM. L.Q. 305, 318 (1996). Similarly, another article argues that it is in a child’s best interest to 

relocate with the primary caregiver. See Carol S. Bruch, Sound Research or Wishful Thinking in Child Custody 

Cases? Lessons from Relocation Law, 40 FAM. L.Q. 281, 314 (2006). The Oklahoma case Julie cites also 

recognized a custodial parent’s presumptive right to relocate with the child. Kaiser v. Kaiser, 23 P.3d 278, 282, 287 

(Okla. 2001). The decision was based on an Oklahoma statute that entitled a parent with custody of a child to 

relocate unless it would “prejudice the rights or welfare of the child.” Id. at 282; see also OKLA. STAT. title 10, § 19 

(1991). Because there is no statute in Idaho creating a presumption in favor of relocation, this case is unpersuasive. 

5
should ordinarily be permitted to move. Mize v. Mize, 621 So.2d 417, 419 (Fla. 1993). The 

court in that case noted, however, that trial courts should still consider factors such as the extent 

the move will improve the quality of life of the parent and child; the motive for the move; the 

extent alternative visitation arrangements will be followed; the extent substitute visitation will 

enable a continuing relationship between the child and the other parent; the costs of 

transportation; and the best interest of the child.4 Id. at 419-20. 

Although Julie does not specifically advocate that this Court adopt the Florida Supreme 

Court’s approach in Mize, she asks us to pronounce a similar set of move-related factors for trial 

courts to consider when deciding relocation cases. As discussed above, this Court has approved 

of trial courts considering move-related factors in addition to the factors set forth in section 32-

717. See Roberts, 138 Idaho at 405, 64 P.3d at 331. Since a trial court may already consider 

factors such as those recognized by the Florida Supreme Court, it would not be particularly 

helpful for this Court to enunciate a laundry list of factors that could or should be considered in 

this type of case. Factors relevant in some relocation cases may be irrelevant in others and, 

under the current framework, trial courts are free to consider factors unique to each case. 

 In any event, the magistrate in this case considered move-related factors in making his 

decision. In addition to considering the section 32-717 factors, the magistrate considered Julie’s 

motive for the move, the extent alternative visitation would allow Sydney and Patrick to 

maintain a close relationship, the impact of the move on Sydney’s visitation with Patrick, and the 

effect of the move on Sydney’s relationship with her extended family. Only after considering all 

of these factors did the magistrate conclude that it would not be in Sydney’s best interest to move 

to Hawaii. Accordingly, the magistrate did not err by failing to consider factors relevant to 

relocation. 

2. 

The Magistrate Did Not Apply an Irrebuttable Presumption Against the Physical 

Separation of a Child and a Non-Custodial Parent 

Julie argues that this Court’s cases have created a virtual presumption against relocation. 

She also argues that the magistrate erred by applying an irrebuttable presumption against the 

 

4

 At the time Mize was decided, Florida had a statute similar to Idaho Code section 32-717B that established a 

presumption that parents should share custody of their children and that children should have “frequent and 

continuing contact” with both parents. See FLA. STAT. § 61.13(2)(b) (1989). 

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physical separation of a child and a non-custodial parent. Finally, she argues that the magistrate 

abused his discretion by overemphasizing her motive for moving. 

a. 

Idaho Law Does Not Impose a Presumption Against Relocation 

Under Idaho law, unless one parent is a habitual perpetrator of domestic violence, it is 

presumed that an award of joint custody serves a child’s best interest.5 I.C. § 32-717B(1), (4) & 

(5). A court may award parents joint physical custody, joint legal custody, or both. Id. § 32-

717B(1). An award of joint physical custody must assure that the child has “frequent and 

continuing contact with both parents,” but this “does not necessarily mean the child’s time with 

each parent should be exactly the same in length nor does it necessarily mean the child should be 

alternating back and forth over certain periods of time between each parent.” I.C. § 32-717B(2). 

We have recognized that: 

[i]t is not unusual for the courts of Idaho to grant one parent the right to have 

child custody for one or two months during the year while the other parent is 

given custody for the remaining months of the year . . . where the welfare and best 

interest of the child require this. 

Koester v. Koester, 99 Idaho 654, 657, 586 P.2d 1370, 1373 (1978) (quoting Nielsen v. Nielsen, 

87 Idaho 578, 582, 394 P.2d 625, 626-27 (1964)) (internal citations omitted); see also State v. 

Hart, 142 Idaho 721, 725-26, 132 P.3d 1249, 1253-54 (2006) (noting that “this Court has upheld 

court decisions giving primary custody to one parent during the school year and directing a 

different schedule during the summer months”); King v. King, 137 Idaho 438, 445, 50 P.3d 453, 

460 (2002) (upholding magistrate’s decision to grant father eighty percent physical custody and 

mother twenty percent physical custody). It is the province of the trial court to determine the 

amount of time the child spends with each parent. I.C. § 32-717B(2). 

The presumption in favor of joint custody is not equivalent to a presumption against a 

custodial parent relocating with a child. As discussed above, the best interest of the child 

standard governs relocation decisions. See Roberts, 138 Idaho at 404, 64 P.3d at 330; see also 

Ford v. Ford, 108 Idaho 443, 445, 700 P.2d 65, 67 (1985). Once the parent seeking permission 

to relocate proves that relocation is in the child’s best interest, he or she will be allowed to move 

with the child. Roberts, 138 Idaho at 405, 64 P.3d at 331. 

 

5

 The presumption may be overcome by a preponderance of the evidence. I.C. § 32-717B(4). 

7
Nonetheless, Julie argues that this Court’s cases have created a “strong presumption 

against any relocation.” She refers specifically to Roberts, Hopper v. Hopper, 144 Idaho 624, 

167 P.3d 761 (2007), Navarro v. Yonkers, 144 Idaho 882, 173 P.3d 1141 (2007), and Schultz v. 

Schultz, 145 Idaho 859, 187 P.3d 1234 (2008). Julie’s characterization of the law in Idaho is 

incorrect. As discussed above, Roberts does not apply a presumption against relocation, it only 

requires that the parent seeking to relocate with the child prove that the move is in the child’s 

best interest. Roberts, 138 Idaho at 405, 64 P.3d at 331. 

Similarly, none of the other cases Julie cites create a presumption against relocation. 

Only one case she relies on actually required a child to remain in Idaho. In Hopper, a mother 

secretly moved to Montana with her son and obtained a fraudulent domestic violence protection 

order against the father. Hopper, 144 Idaho at 625, 167 P.3d at 762. The father subsequently 

filed a motion for temporary custody, which the magistrate denied. Id. Instead, the magistrate 

awarded temporary custody to the mother and permitted her to stay in Montana with the child. 

Id. On appeal, we held that the magistrate erred by failing to require the mother to return the 

child to Idaho during the custody proceedings. Id. at 627, 167 P.3d at 764. We reasoned that the 

mother should not receive the evidentiary benefits associated with having custody of the child 

and thereby be rewarded for her unlawful conduct. Id. We remanded the case so that it could be 

“decided with the underlying legal and social principle that it is [in] the best interests of a child 

to have a continuing relationship with both parents.” Id. 

The other cases Julie cites indicate that a parent’s move is only one factor for courts to 

consider when making custody determinations. In Navarro, a mother moved to Nevada with her 

child without informing the child’s father, after which the father filed a petition for custody. 

Navarro, 144 Idaho at 884, 173 P.3d at 1143. We upheld the magistrate’s decision to treat the 

mother’s unilateral move with the child as a factor relating to the child’s best interest rather than 

as a determinative condition that foreclosed an award of custody to the mother. Id. at 888, 173 

P.3d at 1147. In reaching our decision, we distinguished Hopper on the grounds that the 

mother’s move in that case prevented the father from establishing a relationship with the child. 

Id. In Schultz, a mother fled to Oregon with her child after being physically abused by the 

child’s father. Schultz, 145 Idaho at 861, 187 P.3d at 1236. The father later filed for divorce and 

the magistrate, relying on Hopper, ordered the mother to return the child to Idaho. Id. On 

appeal, we reversed the trial court after concluding that the court abused its discretion by failing 

8
to consider the best interest of the child and to elaborate the basis for its decision. Id. at 862-63, 

187 P.3d at 1237-38. We explained that Hopper did not remove a magistrate’s discretion in 

making child custody determinations and that the best interest of the child remains paramount in 

deciding whether a parent must return a child to Idaho. Id. at 866, 187 P.3d at 1241. The fact 

that a custodial parent relocates outside of Idaho with a child is only one factor to consider when 

deciding what is in the child’s best interest. Id. at 865, 187 P.3d at 1240. 

These cases make clear that Idaho law does not impose a presumption against relocation. 

On the contrary, when considered together, they stand for the proposition that a magistrate must 

consider all factors relevant to the child’s best interest when making a custody determination. A 

parent’s move is only one factor to be considered when awarding custody. See Navarro, 144 

Idaho at 888, 173 P.3d at 1147; Schultz, 145 Idaho at 865, 187 P.3d at 1240. Moreover, several 

Idaho cases have upheld decisions allowing custodial parents to relocate with their children. See, 

e.g., Biggers v. Biggers, 103 Idaho 550, 556, 650 P.2d 692, 698 (1982); Koester v. Koester, 99 

Idaho 654, 658, 586 P.2d 1370, 1374 (1978); Merrill v. Merrill, 83 Idaho 306, 312, 362 P.2d 

887, 891 (1961); Milliron v. Milliron, 116 Idaho 253, 257, 775 P.2d 145, 149 (Ct. App. 1989). 

The common theme is not a presumption against relocation, but rather, deference to the trial 

court.6

 

b. 

The Magistrate Did Not Apply a Presumption Against Relocation 

 Julie argues that the magistrate erroneously applied an irrebuttable presumption against 

relocation. She contends that his ultimate conclusion was guided by his findings that “‘there is 

no adequate substitute for frequent physical time’ between a parent and child” and that 

“Sydney’s best interests require that she retain frequent and regular contact with both of her 

parents.” According to Julie, these findings indicate that the trial court assumed that “physical 

proximity is a requirement of Idaho’s joint custody law.” 

Upon examination of the entire opinion, it is clear that the magistrate did not apply a 

presumption against relocation. While the magistrate could have chosen his words more 

precisely to accurately reflect the law, a review of the entire opinion indicates that the statements 

 

6

 Further, with the exception of Roberts, the cases cited by Julie involved a different issue than the one currently 

before the Court. Hopper, Navarro, and Schultz all dealt with a parent relocating with a child before a custody order 

had been entered. This case involves a parent seeking to modify an existing custody order to permit relocation and, 

for that reason, is more akin to Roberts. 

9
did not play a determinative role in the magistrate’s decision. The magistrate considered all of 

the section 32-717 factors and additional factors relevant to relocation. He also took into account 

section 32-717B’s presumption in favor of joint custody and frequent and continuing contact 

between both parents and the child. In light of the magistrate’s extensive findings, we are unable 

to conclude that he applied an irrebuttable presumption against relocation. 

c. 

The Magistrate Did Not Abuse His Discretion by Overemphasizing Any Single Factor 

Although she did not explicitly raise the issue, it appears to be Julie’s contention that the 

magistrate placed too much emphasis on her decision to move. This contention underlies her 

position that the magistrate applied an irrebuttable presumption against relocation. 

A magistrate’s custody decision will be upheld if it is not an abuse of discretion and is 

supported by substantial and competent evidence. See Weiland, 139 Idaho at 124, 75 P.3d at 

178. A trial court acts within its discretion if it “recognizes the issue as one of discretion; acts 

within the outer limits of its discretion and consistently with the legal standards applicable to the 

available choices[;] and reaches its decision through an exercise of reason.” Roberts, 138 Idaho 

at 403, 64 P.3d at 329. On the other hand, a trial court abuses its discretion when it makes a 

custody award or modification based on evidence that is insufficient to conclude that the award 

is in the child’s best interest. Nelson v. Nelson, 144 Idaho at 713, 170 P.3d at 378. An 

overemphasis on any single factor is also an abuse of discretion. Schultz, 145 Idaho at 863, 187 

P.3d at 1238. 

Here, the magistrate did not abuse his discretion by concluding that Julie should not be 

permitted to move to Hawaii with Sydney. First, the magistrate recognized the issue before him 

as one of discretion. In his findings of fact and conclusions of law he stated that he “recognizes 

that deciding the issues presented in this case requires the [c]ourt to exercise its[] discretion.” 

Second, the magistrate acted within the limits of his discretion and in accord with applicable 

legal standards. In concluding that moving to Hawaii would not be in Sydney’s best interest, he 

considered all of the factors listed in section 32-717 and other factors he deemed relevant. Third, 

the magistrate reached his decision through an exercise of reason. He applied the relevant 

factors to the evidence before him and weighed the factors to reach his decision. The magistrate 

concluded that several factors favored Sydney staying in Idaho. Specifically, Sydney’s level of 

adjustment to her home, school, and community; the character and circumstances of all 

10
individuals involved; and the need to promote continuity and stability in Sydney’s life all 

weighed against relocation. On the other hand, only one of the section 32-717 factors tended to 

weigh in favor of Sydney moving with Julie. Namely, in analyzing the relationship between the 

child and her parents and siblings, the magistrate concluded that Sydney was likely 

psychologically and emotionally closer to Julie due to Julie’s status as Sydney’s primary 

caregiver. 

This is not to say that the magistrate’s weighing of the factors was completely free of 

problems. Particularly, the court’s focus on Julie’s motive for moving is somewhat troubling. 

The judge stated that Julie’s decision to marry David was “self-serving with little regard to the 

impact on Sydney and her relationship with her father.” Further, he regarded the decision as an 

“end run” around his previous restriction against her moving. These findings by the magistrate 

are unsupported by the evidence. Julie sought permission to move in order to live with her 

husband. There is no evidence suggesting that Julie married David with the intent of thwarting 

Patrick’s relationship with Sydney or solely so she could move to Hawaii.7 

Nonetheless, when viewed as a whole, the magistrate’s decision was not an abuse of 

discretion. Although some of the magistrate’s findings could be construed as placing too much 

emphasis on Julie’s motive for moving, these findings were only part of the magistrate’s 

consideration of one factor. The magistrate considered all of the relevant factors and engaged in 

a lengthy factual analysis. Because the magistrate made such extensive findings and the abuse of 

discretion standard is very deferential, the magistrate’s decision was within the limits of his 

discretion, consistent with applicable law, and reached through an exercise of reason. 

3. 

The Magistrate’s Findings of Fact and Conclusions of Law Were Supported by the 

Evidence 

Julie argues that the trial court abused its discretion by making findings of fact and 

conclusions of law that were not supported by the evidence. Specifically, Julie challenges the 

magistrate’s findings relating to her interference with Patrick’s relationship with Sydney. 

 

7

 Further, there was no evidence presented indicating that Julie and David were aware of the location of David’s 

next assignment at the time they became engaged. 

11
a. 

The Magistrate’s Findings of Fact Were Supported by Substantial and Competent 

Evidence 

Julie contests several of the magistrate’s findings relating to her interference with 

Sydney’s relationship with Patrick. She disputes the magistrate’s findings that she twice 

“clandestinely” moved away from Patrick, concealed her whereabouts from Patrick, and engaged 

others to help her conceal her location from Patrick. Julie contests the magistrate’s findings that 

she has a negative attitude toward Sydney’s relationship with Patrick, does not support their 

relationship, and is not concerned with the impact a move to Hawaii would have on their 

relationship. She also disputes the magistrate’s related findings that she has denied Patrick’s 

requests for extra time with Sydney, has not shared Sydney’s school information with Patrick, 

and has portrayed Patrick in a negative light. 

A magistrate’s findings of fact will be upheld 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 at 442, 50 P.3d at 457. On appeal, we view the evidence in favor of the trial court’s 

judgment and will uphold the magistrate’s findings of fact even if there is conflicting evidence. 

Nelson v. Nelson, 144 Idaho at 713, 170 P.3d at 378. Additionally, this Court will not make 

credibility determinations or replace the trial court’s findings of fact by reweighing the evidence. 

Id. 

The magistrate’s findings relating to Julie’s prior attempts to interfere with Sydney’s 

relationship with Patrick are supported by substantial and competent evidence. In making his 

findings, the magistrate relied on two moves Julie made with the children without first informing 

Patrick. The first move was in 1998,8

 when Julie left Patrick in California and moved with the 

children to Texas. The second move occurred in 2004 when Julie decided to enroll in an 

exchange program through Boise State University, in which she intended to spend a semester 

 

8 At one point in his opinion, the magistrate indicated that Julie moved to Texas in 1998 but, at another point, he 

stated she moved in 1999. The record indicates that Julie moved when Sydney was nine months old, which was in 

1998. 

12
studying in Hawaii. In neither instance did Julie discuss her plan to move with Patrick or arrange 

for visitation between Patrick and Sydney. 

Julie’s move to Texas supports the magistrate’s findings. Julie points out that Patrick 

knew about and assisted her in her move to Texas, which demonstrates that the move was not 

clandestine. Testimony elicited from both Julie and Patrick at trial support Julie’s assertion.9

 

Nonetheless, the move could still be viewed as evidence of Julie’s pattern of interfering with 

Patrick’s relationship with Sydney. Patrick did not find out about Julie’s planned move until he 

arrived at their house and discovered that she had removed most of the family’s personal 

belongings. Moreover, in considering the move, the court’s focus was not necessarily on its 

secretive nature but on “Julie’s current and prior effort to move Sydney away from Patrick.” 

Julie’s move to Hawaii in 2004 also supports the magistrate’s findings. The evidence 

before the court indicated that Julie did not inform Patrick that she was moving with Sydney to 

Hawaii, that David refused to tell Patrick where Julie and Sydney were, that Patrick had to hire a 

private investigator to locate Julie and Sydney, and that it took him over two months to find them 

in Hawaii. Because the facts presented support the magistrate’s findings that Julie secretly 

moved with Sydney to Hawaii and that the move interfered with Patrick’s relationship with 

Sydney, the findings were based on substantial and competent evidence. The magistrate could 

have reasonably concluded that Julie’s prior moves demonstrated a pattern of interference with 

Patrick’s and Sydney’s relationship. 

Similarly, there is substantial and competent evidence to support the magistrate’s findings 

regarding Julie’s negative attitude toward Patrick and his relationship with Sydney. Patrick 

testified that there were times that Julie would not allow him to see Sydney during his visitation 

hours and that Julie would not normally permit additional visitation. Additionally, Julie made 

several negative references about Patrick to the court and to Dr. Lipetzky. Julie referred to 

Patrick as controlling and emotionally abusive. She also stated that Patrick never had a positive 

relationship with her two older children, drank and drove with Sydney in the car, was verbally 

abusive, and physically abused her older children. Patrick admitted that he believed in 

 

9

 Patrick testified that he did not approve of Julie’s move to Texas but that he had “discussed it [with her] before she 

left.” Patrick also testified that he frequently visited Julie and the children in Texas and that he sent them money 

every month. 

13
disciplining a child by spanking, however, the magistrate concluded that Patrick’s actions did not 

rise to the level of abuse. None of the other allegations were substantiated by credible testimony. 

Based on his interactions with Julie, Dr. Lipetzky also concluded that Julie has a negative 

attitude toward Patrick. Dr. Lipetzky noted that “Julie went to lengths to attempt to show 

Pat[rick] as an unfit parent” and that she minimized the positive aspects of Patrick’s relationship 

with the children. Julie also instructed Sydney to report her “fear of [Patrick]” in her interview 

with Dr. Lipetzky. For these reasons, Dr. Lipetzky concluded that Patrick would “be more likely 

to foster a positive relationship between Sydney and Julie” than Julie would between Patrick and 

Sydney. 

Although there is conflicting evidence that suggests that Julie has at times been 

supportive of Patrick’s relationship with Sydney,10 the magistrate did not abuse his discretion in 

concluding that Julie interfered with their relationship and had a negative attitude toward Patrick. 

The magistrate was in the best position to judge the credibility of the witnesses and weigh the 

conflicting evidence. Enough evidence was presented for a reasonable mind to make the same 

findings as the magistrate. 

C. 

The Magistrate’s Custody Order Does Not Violate Julie’s Right to Travel 

Julie argues that the custody order preventing her from moving to Hawaii with Sydney 

violates her right to travel because she is Sydney’s custodial parent. She also maintains that the 

best interest of the child standard is not a compelling government interest sufficient to justify a 

restriction on her right to travel. She cites decisions from other state courts that have adopted 

that stance11 and urges this Court to do likewise. 

 

10 Julie testified that she informed Patrick about Sydney’s programs, concerts, and other school events. She gave 

Patrick redacted copies of Sydney’s report cards and sent Sydney to Patrick’s with a bag containing school papers. 

Additionally, Patrick testified that Julie contacted him to participate in a career day at Sydney’s school and that she 

sometimes allowed Sydney to spend extra time with him. The evidence also showed that Julie has never violated a 

court order granting Patrick formal visitation. The instances where Julie did interfere with Patrick’s visitation 

occurred before a custody order was in place. 

11 Julie cites Rideout v. Riendeau, 761 A.2d 291, 301 (Me. 2000) (holding that the best interest of the child was not a 

compelling government interest that justified interfering with a parent’s right to the custody and control of his or her 

child by granting grandparent visitation); In re Parentage of C.A.M.A., 109 P.3d 405, 413 (Wash. 2005) (similar); 

Mizrahi v. Cannon, 867 A.2d 490, 498 (N.J. 2005) (holding that grandparents seeking visitation with child over 

parent’s objection must demonstrate the child will be harmed without visitation and that showing visitation is in the 

child’s best interest is insufficient to overcome a parent’s decision to withhold visitation). Those cases are not 

particularly relevant here, however, since they did not decide whether the best interest standard justified a restriction 

on a parent’s right to travel. Moreover, the cases dealt with whether the best interest standard was sufficient to 

14
The United States Constitution protects the fundamental right of United States citizens to 

travel freely from state to state and to reside in the state of their choice.12 Jones v. Helms, 452 

U.S. 412, 418 (1981). The right to travel contains three primary guarantees: the right of a citizen 

from one state to travel to another state, the right to be treated equal to citizens of another state 

upon taking up residence in that state, and the right of travelers temporarily in a state to be 

regarded as welcome visitors. Saenz v. Roe, 526 U.S. 489, 500 (1999). Generally, state action 

penalizing a citizen for leaving or entering a state violates the citizen’s right to travel. Jones, 452 

U.S. at 419. State laws that deter citizens from travelling also implicate the right. Attorney Gen. 

of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986). Nonetheless, a state may restrict a 

citizen’s right to leave the jurisdiction when doing so is necessary to serve a compelling 

government interest. Shapiro v. Thompson, 394 U.S. 618, 634 (1969), overruled on other 

grounds by Edelman v. Jordan, 415 U.S. 651 (1974). 

1. 

The Custody Order Implicates Julie’s Right to Travel 

State action forcing a citizen to choose between exercising his or her fundamental right to 

travel and another constitutionally protected right violates the right to travel unless it is justified 

by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 342 (1972). In Dunn, 

Tennessee had enacted a durational residency requirement that prohibited new residents from 

voting unless, by the time of the election, they had been residents of the state for one year. Id. at 

331. Several new residents challenged the law as unconstitutional in a class action suit. Id. at 

331-32. The Supreme Court held that the law was unconstitutional and violated the new 

residents’ right to travel. Id. at 360. The Court concluded that the law forced citizens to choose 

between their basic right to vote and their right to travel and, therefore, was only valid if it was 

necessary to serve a compelling government interest. Id. at 342. Because the law was not 

necessary to serve the state’s interest in preventing voter fraud and because less restrictive means 

 

overcome a parent’s decision to deny a third party’s request for visitation, not with whether it was enough to limit 

another parent’s visitation rights. See Rideout, 761 A.2d at 301; Parentage of C.A.M.A., 109 P.3d at 413; Mizrahi, 

867 A.2d at 498; see also Troxel v. Granville, 530 U.S. 57, 73-74 (2000) (plurality). 12 The Due Process Clauses of the Fifth and Fourteenth Amendments are often considered the sources of this 

guarantee. Jones, 452 U.S. at 418-19. However, the precise provision establishing the right to travel has been a 

matter of disagreement. See id. at 418; Edwards v. California, 314 U.S. 160, 172-73 (1941) (relying on the 

Commerce Clause to invalidate statute restricting interstate migration); Edwards, 314 U.S. 160, 178 (Douglas, J., 

concurring) (concluding that the Privileges and Immunities Clause of the Fourteenth Amendment protects the right 

15
existed to further the state’s goal, the Court concluded the statute was unconstitutional. Id. at 

346, 353. 

The magistrate’s decision to transfer custody of Sydney to Patrick if Julie moves to 

Hawaii implicates Julie’s right to travel. Although the order does not absolutely prohibit Julie 

from moving to Hawaii, it deters her from exercising her right to travel by taking away her status 

as Sydney’s custodial parent if she moves. It also forces her to choose between two 

constitutionally protected rights: her right to travel and her right to raise her child.13 Because the 

order implicates Julie’s right to travel, it must serve a compelling government interest to be 

valid. 

2. 

The Restriction on Julie’s Right to Travel is Necessary to Serve a Compelling Government 

Interest 

Julie argues that the best interest of the child standard is not a compelling government 

interest that justifies restricting her right to travel. We disagree. 

a. 

Ensuring Sydney’s Best Interest is a Compelling Government Interest 

The Idaho Court of Appeals has ruled that protecting the best interest of a child is a 

compelling government interest. Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (Ct. App. 

1985) (per curiam). In Ziegler, a mother challenged a child custody award granting her primary 

physical custody and requiring the children to live within a 100 mile radius of Coeur d’Alene. 

Id. at 533, 691 P.2d at 779. The mother argued that the residency restriction violated her right to 

travel since she had primary physical custody of the children. Id. The Court of Appeals upheld 

the residency restriction on the ground that it was justified by a compelling government interest, 

namely, ensuring the best interests of the children.14 Id. at 534, 691 P.2d at 780. In Weiland v. 

 

to travel); Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 902 (1986) (noting that the right to travel has 

been attributed to concepts of federalism). 

13 This Court has recognized that the Fourteenth Amendment guarantees a parent’s fundamental right to the 

“custody, care and control of his or her child.” See Leavitt v. Leavitt, 142 Idaho 664, 670, 132 P.3d 421, 427 (2006) 

(quoting In re Bush, 113 Idaho 873, 875, 749 P.2d 492, 494 (1988)); see also Troxel v. Granville, 530 U.S. 57, 66 

(2000). 

14 Julie argues that Ziegler only requires interference with a parent’s right to travel when necessary and that 

interference is not necessary unless a parent poses a risk of fleeing with the children. This characterization of 

Ziegler is misleading. Ziegler requires interference when necessary to serve the child’s best interest. In Ziegler, the 

Court of Appeals, quoting the lower court’s opinion, stated “the best interest of the children dictates that they should 

have the love, support, guidance and companionship of both their parents . . . and assuring the maximum 

16
Ruppel, 139 Idaho 122, 75 P.3d 176 (2003), this Court cited Ziegler in rejecting a similar 

challenge to a child custody award that granted a mother custody as long as she remained in 

Idaho. See id. at 125, 75 P.3d at 179. We did not expressly adopt the rationale or holding of 

Ziegler, but noted that it was proper for the trial court to weigh the custodial parent’s right to 

travel against the child’s interest in maintaining a relationship with the other parent. Id. 

Relocation cases such as the one before us require us to strike a balance between two 

equally important, yet conflicting, constitutional rights. If Julie were permitted to move to 

Hawaii with Sydney, Patrick would be deprived of his right to the custody, care, and control of 

his child. There is no reason why Julie’s constitutional right to travel should automatically trump 

Patrick’s constitutional right to raise his child. Similarly, Patrick’s right to raise Sydney should 

not automatically outweigh Julie’s right to travel. Accordingly, we hold that the best interest of 

the child standard is the most appropriate way to fairly balance parents’ competing constitutional 

rights in relocation cases and is a compelling government interest. In this case, the magistrate 

determined that it was not in Sydney’s best interest to move to Hawaii, which provides the state a 

compelling reason for restricting Julie’s right to travel. 

b. 

The Custody Order is Necessary to Serve a Compelling Government Interest 

A residency restriction is necessary to serve a compelling government interest when it is 

the least restrictive way to achieve the government’s objective. Dunn, 405 U.S. at 342. The 

United States Supreme Court has held that the least restrictive means test applies to restrictions 

on the right to travel. See, e.g., Id. at 342-43. Assuming, but not deciding, that the least 

restrictive means test applied, the Court of Appeals in Ziegler concluded that the 100 mile 

residency restriction was not overly broad. Ziegler, 107 Idaho at 535, 691 P.2d at 781. The 

court reasoned that the order did not restrict the mother’s right to travel outside the 100 mile 

zone for temporary purposes such as vacation and business. Id. Moreover, the mother could still 

move outside the area by giving up primary custody of the children. Id. The fact that the order 

only required the mother to seek the court’s authorization before moving and did not completely 

prohibit her from relocating was also important. Id. Because the order was the least restrictive 

way of ensuring the children’s best interests, it did not violate the mother’s right to travel. Id. 

 

opportunities for [receiving those benefits] is a compelling state interest.” Ziegler, 107 Idaho at 534, 691 P.2d at 

780. The parents’ flight risk was only part of the best interest analysis. 

17
Here, because the magistrate concluded that it is not in Sydney’s best interest to move to 

Hawaii, the custody order is necessary to serve a compelling government interest. There is no 

less restrictive alternative to achieve the government’s objective. The magistrate’s only other 

option would have been to grant Julie primary custody of Sydney and force her to live in Idaho. 

Although it would undoubtedly be a difficult choice for Julie to make, at least under the current 

custody order she can either move to Hawaii and give up primary custody of Sydney or stay in 

Idaho and retain custody. Further, like the child custody order in Ziegler, the custody order in 

this case does not prohibit Julie from temporarily leaving Idaho to go on vacation or business 

trips. She can even take Sydney on these temporary departures, provided doing so does not 

interfere with Patrick’s visitation. For these reasons, the custody order is necessary to serve a 

compelling government interest and does not violate Julie’s right to travel. 

D. 

Attorney Fees 

Patrick requests an award of attorney fees pursuant to Idaho Code sections 12-120 & 12-

121 and Idaho Rule of Civil Procedure 54(e)(1). He argues that Julie brought the appeal 

frivolously, unreasonably, or without foundation. However, Patrick presented no argument or 

authority to support his request for an award of fees and, therefore, we deny his request. See, 

e.g., Davis v. Parrish, 131 Idaho 595, 599, 961 P.2d 1198, 1202 (1998) (declining to address 

respondent’s request for an award of attorney fees because she failed to support her request with 

argument or authority). 

III. 

 The magistrate’s denial of Julie’s petition is affirmed. Patrick’s request for attorney fees 

is denied. Costs awarded to Patrick. 

Justices BURDICK and HORTON concur. 

Chief Justice EISMANN, concurring in the result. 

 I cannot concur in the majority opinion because it disregards the public policy declared 

by Idaho Code § 32-717B. 

A. Idaho Code § 32-717B creates a presumption that a parent not be permitted to move 

away with a child if doing so would prevent the other parent from having frequent and 

continuing physical custody of the child. 

18
 Idaho Code § 32-717B(4) declares, “[A]bsent a preponderance of the evidence to the 

contrary, there shall be a presumption that joint custody is in the best interests of a minor child or 

children.” “‘Joint custody’ means an order awarding custody of the minor child . . . to both 

parents and providing that physical custody shall be shared by the parents in such a way as to 

assure the child . . . of frequent and continuing contact with both parents.” King v. King, 137 

Idaho 438, 445, 50 P.3d 453, 460 (2002) (citation omitted). Joint custody also requires that each 

parent have physical custody for significant periods of time. I.C. § 32-717B(2). 

 Section 32-717B(4) creates a presumption that it is in the best interests of a child that 

both parents have frequent physical custody of the child.15 Typically, in order for that to be able 

to occur, the child will have to be living in physical proximity to both parents. 

 If a parent chooses to move away from where the child is residing, that parent may not be 

able to have frequent physical custody of the child. For example, in King v. King, the mother, 

the father, and the child resided in Jefferson County, Idaho. The mother chose to move from 

there to the state of Michigan. In the ensuing divorce action, the father was granted physical 

custody of the child for eighty percent of the time and the mother was granted physical custody 

for twenty percent. In responding to the mother’s challenge to the division of physical custody, 

we stated the obvious, “In this case, Melissa chose to move from Idaho to Michigan. The 

practical effect of her move is to limit the amount of time that she can spend with Megan.” 137 

Idaho at 445, 50 P.3d at 460. Conversely, permitting a parent to move away with a child will 

typically prevent the other parent from having frequent physical custody of the child. Obviously, 

if there is a presumption in favor of joint custody, then there is a presumption against allowing 

one parent to move away with the child if the move would prevent the other parent from having 

frequent and continuing physical custody of the child. To hold otherwise would render the 

statutory presumption meaningless. 

 The statutory presumption is based upon the legislature’s determination that it is in the 

best interests of a child for both parents to have frequent and continuing physical custody of the 

child. To overcome that presumption, the parent wishing to move away with the child must 

prove that it is in the child’s best interests for the other parent not to have frequent and 

 

15 The presumption does not apply if one of the parents is a habitual perpetrator of domestic violence. I.C. § 32-

717B(5). 

19
continuing physical custody of the child. A parent can decide that other things in the parent’s 

life are more important than maintaining a close relationship with the child, and move away. 

The court cannot prevent a parent from doing so. The parent should not, however, be permitted 

to move away with the child simply because the moving parent concludes that other things in his 

or her life are more important than the other parent’s ability to maintain a relationship with the 

child. 

This Court has in the past guarded against actions that would interfere with the 

relationship between a parent and child. In Weiland v. Ruppel, 139 Idaho 122, 75 P.3d 176 

(2003), we upheld the trial court’s refusal to permit a mother to move to Portland, Oregon, with 

the parties’ child because of the adverse impact such a move would have on the child’s 

relationship with his father, who resided in Idaho. The trial court had concluded that “the 

adverse impact upon [the child’s] relationship with his father will outweigh any potential 

benefits he might receive by virtue of his mother’s relocation to Portland.” 139 Idaho at 125, 75 

P.3d at 179. In Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007), a mother surreptitiously 

moved with the parties’ five-month-old child to Montana. In a subsequent divorce action filed 

by the father, the trial court permitted the mother to remain in Montana with the child, and 

ultimately awarded her primary physical custody. This Court vacated the custody decree, 

stating, “The mother should have been ordered to return the child to Idaho where the father 

might exercise his rights as an equal parent and have this case decided with the underlying legal 

and social principle that it is in the best interests of a child to have a continuing relationship with 

both parents.” 144 Idaho at 627, 167 P.3d at 764. In Thurman v. Thurman, 73 Idaho 122, 245 

P.2d 810 (1952), this Court reversed an order changing custody to the father based upon this 

Court’s findings on appeal that the father had alienated the children from the mother. In doing 

so, this Court stated: 

 The best welfare of minor children is promoted by having such children 

respect and love both parents. This is natural and every effort should be directed 

to the end that such respect and affection will not be destroyed and alienated; any 

other course is not in the interest of and for the best welfare of such minor 

children. . . . . 

 The acts and conduct of the custodial parent, resulting in the alienation of 

the love and affection which children naturally have for the other parent, is a vital 

and very serious detriment to the welfare of such children and is grounds for 

modification of the decree with respect to such custody. 

20
73 Idaho at 128, 245 P.2d at 814. 

 Giving effect to the presumption created by Idaho Code § 32-717B is consistent with our 

prior decisions preventing one parent from interfering with the relationship between the other 

parent and their child or children. The purpose of the presumption in Section 32-717B is to 

promote the best interests of the child by assuring that both parents have the opportunity to have 

frequent and continuing physical custody of their child for significant periods of time. Such 

periods of physical custody are essential to develop and maintain a close relationship with the 

child. One parent should not be able to interfere with that relationship by seeking to alienate the 

child towards the other parent, by preventing the other parent from having contact with the child, 

or by moving away with the child if it would prevent the other parent from having frequent and 

continuing physical custody of the child. In any of those circumstances, the result is the same. 

One parent is acting contrary to the best interests of the child by preventing the child from 

developing and having a healthy relationship with the other parent. In this case, Julie failed to 

overcome the statutory presumption that it was in Sydney’s best interests to be in the physical 

custody of Patrick for frequent periods of time. 

B. The Constitution of the United States Does Not Require that Jones Be Permitted to 

Move Away with the Parties’ Child.

 Julie contends that her constitutional right to travel will be infringed if she is required to 

leave the parties’ daughter behind when she moves to Hawaii. More than her constitutional 

rights are at issue in this case. The liberty interests protected by the United States Constitution 

include “the interest of parents in the care, custody, and control of their children.” Troxel v. 

Granville, 530 U.S. 57, 66 (2000). Parents have a fundamental right “to make decisions 

concerning the care, custody, and control of their children.” Id. To exercise her right to travel, 

Julie seeks to deprive Patrick of his constitutional and statutory rights to the care and custody of 

his daughter. 

 Our freedoms to engage in various activities also include the freedom not to do so. The 

freedom to exercise religion includes the freedom not to do so. As the Supreme Court stated in 

Lee v. Weisman, 505 U.S. 577, 621 (1992) (citation omitted), “[L]aws that coerce nonadherents 

to ‘support or participate in any religion or its exercise,’ would virtually by definition violate 

their right to religious free exercise.” The freedom of speech also “prohibits the government 

from telling people what they must say,” Rumsfeld v. Forum for Academic and Institutional 

21
22

Rights, 547 U.S. 47, 61 (2006), and from the government “forc[ing] one speaker to host or 

accommodate another speaker’s message.” Id. at 63. The freedom of press includes the right not 

to print. “A responsible press is an undoubtedly desirable goal, but press responsibility is not 

mandated by the Constitution and like many other virtues it cannot be legislated.” Miami Herald 

Pub. Co. v. Tornillo, 418 U.S. 241, 256 (1974). Likewise, “[f]reedom of association . . . plainly 

presupposes a freedom not to associate.” Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984). 

 In Shapiro v. Thompson, 394 U.S. 618, 629 (1969), the United States Supreme Court 

stated that “the nature of our Federal Union and our constitutional concepts of personal liberty 

unite to require that all citizens be free to travel throughout the length and breadth of our land 

uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this 

movement.” Shapiro struck down a one-year residency requirement before becoming eligible 

for welfare benefits in order to deter indigents from moving to the state solely to obtain larger 

benefits. As the Court stated, “More fundamentally, a State may no more try to fence out those 

indigents who seek higher welfare benefits than it may try to fence out indigents generally.” Id.

at 631. Obviously, if the state could not “fence out indigents” it could also not force them to 

leave after they arrived. Their right to be free to travel into the state would be hollow unless it 

also included a right not to be coerced into leaving the state. 

 Julie contends that her right to travel will be infringed if she cannot move to Hawaii with 

Sydney. If Julie is permitted to move to Hawaii with their daughter, Patrick would have to move 

to Hawaii in order for him to have frequent physical custody of Sydney, infringing his 

constitutional right not to travel. Julie’s constitutional rights are not more important than 

Patrick’s constitutional rights. Therefore, the deciding factor must be the best interests of the 

child, applying the presumption created by Idaho Code § 32-717B(4). 

 For the above reasons, I concur in the result. 

 Justice W. JONES CONCURS.