Appeal from the District Court of the Seventh Judicial District, State of Idaho, Jefferson County. Hon. Robert L. Crowley, Jr., Magistrate Judge.
The opinion of the court was delivered by: Burdick, Chief Justice
Decision determining custody and visitation, affirmed.
This case comes before this Court on an appeal from a magistrate court's determination on custody and visitation of minor children in a divorce proceeding. In a memorandum decision, the magistrate court awarded the parties joint legal custody of the children, with primary physical custody awarded to the mother. The father, Russell Peterson (Russell), alleges on appeal that the magistrate court abused its discretion by awarding unequal visitation time to the mother, Laura Peterson (Laura), and by allowing the mother to move to Utah with the children. We affirm the decision of the magistrate court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Russell and Laura Peterson were married in 1993 and have five minor children. The children were born in 1997, 1999, 2005, and twins in 2007. In 2001, the Petersons moved to Shelley, Idaho, eventually building a home in Rigby, Idaho in 2004. Throughout the marriage, Laura was a stay-at-home mother while Russell, trained as a counselor and clinician, was the sole wage earner. In late 2002, Laura filed for divorce on the basis of irreconcilable differences and the parties separated. In March 2003, Russell and Laura reconciled and the divorce action was dismissed.
In June 2009, Russell was arrested and charged with indecent exposure and public nuisance, both misdemeanors.*fn1 He pled guilty to the indecent exposure charge. Shortly after, Russell lost his part-time job at the Behavioral Health Center in Idaho Falls and resigned from his job at the Idaho Department of Health and Welfare. In August 2009, he started working full time for Mental Wellness Centers, Inc., in Idaho Falls.
On August 6, 2009, Laura informed Russell that she was taking the children to live in Utah, though she did not file for divorce. Russell filed a Complaint for Divorce the next day, August 7, 2009, alleging irreconcilable differences. Soon after, the magistrate court filed a Joint Temporary Restraining Order (JTRO), a Preliminary Injunction, and an Order to Attend Focus on Children Class. The JTRO prohibited the children from being removed from the state for more than 72 hours.
The magistrate court received evidence and entered a temporary order regarding child custody on March 26, 2010. The temporary order provided joint legal and physical custody with a schedule for visitation, and mandated that Russell vacate the family home and move to an apartment as close as possible to the family home. As part of the custody proceedings, the Petersons participated in a custody evaluation conducted by Dr. Ruby Walker (Dr. Walker). In her report, Dr. Walker concluded that Laura and Russell were both caring parents and recommended "joint legal and physical custody of the children." Dr. Walker also found that the "children have been raised with both parents actively involved in their care. To change this in any drastic manner will have a detrimental effect upon the children."
After preliminary matters, a trial was held on three non-consecutive days: March 2, 2011, March 31, 2011, and June 13, 2011. After the trial, both Russell and Laura submitted written argument to the magistrate court.
On July 28, 2011, the magistrate court entered a Memorandum Decision that awarded primary physical custody to Laura with visitation to Russell every other weekend, split holidays, and a two-week rotation during the summer. The magistrate court also held that it is in the best interests of the children for Laura to be permitted to move to Salt Lake City, Utah, if she chooses. On August 19, 2011, the magistrate court issued a Decree of Divorce that contained similar findings. The decree awarded joint legal custody of the children with joint physical custody as apportioned in the memorandum decision.
Russell filed a Motion for Permissive Appeal on September 19, 2011. The motion was initially denied, but was subsequently granted after this Court received a statement in support of appeal from Russell. A Notice of Appeal was filed with this Court on November 18, 2011.
Child custody determinations made by a magistrate court are reviewed by this Court under an abuse of discretion standard. Schneider v. Schneider, 151 Idaho 415, 420, 258 P.3d 350, 355 (2011) (citing Hoskinson v. Hoskinson, 139 Idaho 448, 454, 80 P.3d 1049, 1055 (2003)). In its analysis, this Court asks first whether the magistrate court correctly perceived the custody issue as one of discretion; then whether the magistrate court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to the court; and finally, whether the magistrate court reached its decision by an exercise of reason. Schultz v. Schultz, 145 Idaho 859, 861-62, 187 P.3d 1234, 1236-37 (2008).
"An abuse of discretion occurs when the evidence is insufficient to support a magistrate's conclusion that the interests and welfare of the children would be best served by a particular custody award or modification." Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007). When reviewing the magistrate court's findings of fact, this Court "will not set aside the findings on appeal unless they are clearly erroneous such that they are not based upon substantial and competent evidence." Id. Even if the evidence is conflicting, findings of fact based on substantial evidence will not be overturned on appeal. Id. (citing State v. Hart, 142 Idaho 721, 723, 132 P.3d 1249, 1251 (2006)).
A. The magistrate court did not abuse its discretion in awarding primary physical custody to Laura with visitation to Russell.
Russell argues that although the magistrate court granted the parties joint legal and physical custody of the children, the parenting plan grants primary physical custody and a majority of the visitation time to Laura. Russell argues that such an arrangement is contrary to the legal presumption of joint legal custody found in Idaho case law, and contrary to Dr. Walker's recommendations. In response, Laura argues that the magistrate court reached its conclusions through an extensive analysis, applying the evidence to the appropriate statutory factors and applicable case law.
In custody determinations, the best interest of the child or children is of paramount importance. Schultz, 145 Idaho at 862, 187 P.3d at 1237. Idaho Code section 32-717B(4) states that "there shall be a presumption that joint custody is in the best interests of a minor child or children." Joint custody is defined as "an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents." I.C. § 32- 717B(1). An award of joint physical or legal custody is based on the court's determination of "the best interests of the minor child or children." Id. However, joint physical custody does not mean that each parent is entitled to receive an equal amount of time with the children:
'Joint physical custody' means an order awarding each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.
Joint physical custody shall be shared by the parents in such a way to assure the child a frequent and continuing contact with both parents but 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 ...