In 21st Century America, most skirmishes in the Gender Wars are merely humorous or tedious — but, sometimes they’re dangerous. The batttle cries shouted in the wake of the California Supreme Court’s child custody relocation decision last week — Navarro v. LaMusga (04-29-04) — suggest that some advocates are willing to sacrifice the interests and needs of children to the supposed “rights” of one gender over the other.
Having represented hundreds of children in custody cases, and mediated many divorces, I believe the LaMusga Court’s emphasis on the child’s right to have an ongoing, meaningful relationship with both parents is not just eminently reasonable, it is mandated as the core mission of family or marital courts. The child’s relationship to the other parent must be a significant part of any decision whether to move away,
To the extent that the California decision eight years ago in the Burgess case gave the impression — adopted thereafter by many other states — that the custodial parent has the presumptive right to move away, the LaMusga “refinement” or clarification is late but welcomed.
Robinson seems to have forgotten that the trial court had in fact permitted her client to move to Arizona (where the father was able to maintain frequent physical contact), but concluded that a move to Ohio was simply too likely to harm the children relationship with their father — especially given the mother’s antagonism toward the father.
An article in The Recorder notes that the LaMusga decision “sharply divides children’s rights advocates” (Divorced Parents Must Consider Ex if Moving Away, 05-03-04):
While some children’s advocates hailed the ruling as a victory for kids and a reaffirmation of trial court judges’ broad discretion, opposing groups, such as the California Women’s Law Center, called it “a huge step backwards.”
Davis, Calif., solo practitioner Tony Tanke, who represented the mother in the case, went as far as calling Thursday “the worst day for children in the history of California.” “California’s custodial parents — most of whom are mothers,” Tanke said in a prepared statement, “have lost the presumptive right to make decisions to better their lives and the lives of their children.” Judges can deny relocation, Tanke added, if the moving parent wasn’t “sufficiently friendly toward an ex-spouse.”
The debate now turns toward the state Legislature, where Sen. John Burton, D-San Francisco, is pushing a bill aimed at preserving custodial parents’ presumptive right to move. The bill, amended Wednesday, says that courts should not frustrate that right with “undue delay.”
The Christian Science Monitor declares (“A legal boost for noncustodial parents,” 05-03-04) that the LaMusga decision “is setting the stage for a national shift on one of the most contentious areas of divorce law. By keeping a mother from moving to Ohio with her children against the father’s will, the court is sending legal tremors across the US.” It continues:
The decision comes at a time when the fathers’ rights movement has been gaining momentum in state courts and legislatures. But California’s ruling stands as perhaps the strongest endorsement yet of the idea that the balance of power between divorced parents has swung too far toward mothers – and that judges and lawmakers must try to stake out a new middle ground.
Legal scholars are still parsing the 6-to-1 decision to determine exactly what the court intended. The general consensus is that the language of the decision is far from revolutionary; the court itself says that it is merely fine-tuning the 1996 so-called Burgess ruling.
But the court’s actions tell a different story, some analysts say. By preventing the mother from moving with her children over the objections of the father, the analysts suggest, the court is essentially overthrowing a decade of jurisprudence. In general, mothers were allowed to move for virtually any legitimate reason – ranging from a new job to a new spouse.
Custodial parents may indeed have to forego moves that would unduly interfere with their child’s relationship with the noncustodial parent. However, the LaMusga opinion does not prevent all moves (often the parties will be able to agree upon new arrangements), nor even all moves that are detrimental to the children (many noncustodial parents will not have the resources to fight a move, and others won’t have strong enough arguments to stop a move).
Everyday in America, men and women decide for countless reasons not to move great distances — despite the lure of better jobs or climate, or a wish for a fresh start. Not moving because your children need a meaningful relationship with their other parent should not be thought of as an unreasonable restriction on personal freedom. Rather, it’s an obligation of responsible parenting.
Being remarried should not be an automatic “get out of state” card, either. The divorced parent has “baggage” (obligations) that can’t be left behind by the new couple.
When divorced or estranged parents disagree about a move — whether the custodial parent is the mother or the father — it’s better to have the determination of its appropriateness made by a responsible court than by an irresponsible or hostile “ex.”