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.”
I do not pretend to know anything about this topic, but isn’t there a presumption that the custodial parent is the more responsible parent, and the one best suited to make decisions about the children’s welfare? If not, what business did the court have awarding custody to that parent in the first place? It seems pretty harsh to give a non-custodial parent an effective veto over a custodial parent’s movements, particular given the fundamental role that freedom of movement plays in American life. (For that matter, once you get as far away as Arizona, how much difference does it make if the children move to Ohio?) Finally, it seems that that there is a misplaced emphasis here: my impression has always been that the biggest problem facing children of divorces was getting the non-custodial parent to pony up his support obligations.
Comment by Bill Day — May 9, 2004 @ 2:32 am
I do not pretend to know anything about this topic, but isn’t there a presumption that the custodial parent is the more responsible parent, and the one best suited to make decisions about the children’s welfare? If not, what business did the court have awarding custody to that parent in the first place? It seems pretty harsh to give a non-custodial parent an effective veto over a custodial parent’s movements, particular given the fundamental role that freedom of movement plays in American life. (For that matter, once you get as far away as Arizona, how much difference does it make if the children move to Ohio?) Finally, it seems that that there is a misplaced emphasis here: my impression has always been that the biggest problem facing children of divorces was getting the non-custodial parent to pony up his support obligations.
Comment by Bill Day — May 9, 2004 @ 2:32 am
Hi, Bill. You’ve raised some good issues, and I’ll try to respond briefly:
1) in the vast majority of cases, (a) custody is not litigated; (b) both parents are considered to be responsible and adequate parents; (c) if litigated, the parent who has been the “primary caregiver” usually gets primary physical custody, and thereafter makes day to day decisions, but major life decisions for the children are still expected to be made jointly if there is joint legal custody (which is the norm).
there are only two parents to choose from, and the choice is not a condemnation of the other parent in most cases nor a coronation of the primary custodian — much more like a concession to practical realities relating to their prior role in the family and/or job circumstances. If the primary caregiver is not willing to cooperate to allow the children to have a healthy relationship with the other parent, the children are in trouble for the longrun, no matter how well they are taken care of day to day.
2) There is no blanket veto for the noncustodial parent. The move must cause a major disruption in the ability of the noncustodial parent to maintain or create a meaningful relationship with the child. In the LaMusga case, getting to Ohio from California can obviously be a lot harder (or impossible) on a frequent basis than getting to Arizona. Mr. LaMusga cannot demand that he not be inconvenience in any way, nor can Ms. Navarro create whatever distance she wants between her children and their fater. In between, if they cannot reach an agreement, a judge has to decide — based on many factors, but properly focused on the overall interests of the children. It is the children’s right to a relationship with the noncustodial parent that is the key here, even if it is raised by that noncustodial parent.
If the noncustodial parent has not been trying to have a meaningful relationship with the children, or is dangerous to them, or can continue the relationship with a little extra effort, there will be no case to make to stymie the move.
3) Freedom of movement is only one of many rights involved. Being a responsible parent imposes lots of responsibilities (thank goodness) that can cut into the right of movement, and many other “rights”. And, the custodial parents can move if they want to — they just might have to relinquish primary phyiscal custody (and place on themselves the same traveling burden they were willing to place on the other parent). Currently, we live in a society where the primary caregiver in a family can merely announce “I’m getting a divorce; your children will no longer be a part of your daily life; and you now owe me X% of your income.” That’s fairly family-unfriendly. but adding an automatic “and, by the way, we won’t be within geographic range that would allow any meaningful contact,” seems to be an extreme that goes far beyond the right to cross state lines freely.
Often, as a mediator and as a law guardian, I’ve suggested that the freedom to move be unrestricted within a particular geographic radius, but that moves beyond that point be negotiated. The actual distance (and the financial or employment restrictions faced by the noncustodial parents in dealing with the change) can obviously make a very large difference. Here, the court was willing to impose a drive to Arizona on the father.
4) Most noncustodial parents live up to their financial obligations. A parent who consistently and significantly failed to do so would have a much harder time attempting to stop a move that is made in good faith by the custodial parent. (Furthermore, a noncustodial parent who is treated as an important and welcome — even if inconvenient – part of the child’s life is far more likely to live up to those obligations.)
Comment by David Giacalone — May 9, 2004 @ 11:29 am
Hi, Bill. You’ve raised some good issues, and I’ll try to respond briefly:
1) in the vast majority of cases, (a) custody is not litigated; (b) both parents are considered to be responsible and adequate parents; (c) if litigated, the parent who has been the “primary caregiver” usually gets primary physical custody, and thereafter makes day to day decisions, but major life decisions for the children are still expected to be made jointly if there is joint legal custody (which is the norm).
there are only two parents to choose from, and the choice is not a condemnation of the other parent in most cases nor a coronation of the primary custodian — much more like a concession to practical realities relating to their prior role in the family and/or job circumstances. If the primary caregiver is not willing to cooperate to allow the children to have a healthy relationship with the other parent, the children are in trouble for the longrun, no matter how well they are taken care of day to day.
2) There is no blanket veto for the noncustodial parent. The move must cause a major disruption in the ability of the noncustodial parent to maintain or create a meaningful relationship with the child. In the LaMusga case, getting to Ohio from California can obviously be a lot harder (or impossible) on a frequent basis than getting to Arizona. Mr. LaMusga cannot demand that he not be inconvenience in any way, nor can Ms. Navarro create whatever distance she wants between her children and their fater. In between, if they cannot reach an agreement, a judge has to decide — based on many factors, but properly focused on the overall interests of the children. It is the children’s right to a relationship with the noncustodial parent that is the key here, even if it is raised by that noncustodial parent.
If the noncustodial parent has not been trying to have a meaningful relationship with the children, or is dangerous to them, or can continue the relationship with a little extra effort, there will be no case to make to stymie the move.
3) Freedom of movement is only one of many rights involved. Being a responsible parent imposes lots of responsibilities (thank goodness) that can cut into the right of movement, and many other “rights”. And, the custodial parents can move if they want to — they just might have to relinquish primary phyiscal custody (and place on themselves the same traveling burden they were willing to place on the other parent). Currently, we live in a society where the primary caregiver in a family can merely announce “I’m getting a divorce; your children will no longer be a part of your daily life; and you now owe me X% of your income.” That’s fairly family-unfriendly. but adding an automatic “and, by the way, we won’t be within geographic range that would allow any meaningful contact,” seems to be an extreme that goes far beyond the right to cross state lines freely.
Often, as a mediator and as a law guardian, I’ve suggested that the freedom to move be unrestricted within a particular geographic radius, but that moves beyond that point be negotiated. The actual distance (and the financial or employment restrictions faced by the noncustodial parents in dealing with the change) can obviously make a very large difference. Here, the court was willing to impose a drive to Arizona on the father.
4) Most noncustodial parents live up to their financial obligations. A parent who consistently and significantly failed to do so would have a much harder time attempting to stop a move that is made in good faith by the custodial parent. (Furthermore, a noncustodial parent who is treated as an important and welcome — even if inconvenient – part of the child’s life is far more likely to live up to those obligations.)
Comment by David Giacalone — May 9, 2004 @ 11:29 am
David,
As usual, a thoughtful, informed, and persuasive analysis, and a reminder of why I enjoy reading your weblog (by whatever name :-) ). I always come away feeling that I have learned something new.
Bill
Comment by Bill Day — May 10, 2004 @ 12:50 am
David,
As usual, a thoughtful, informed, and persuasive analysis, and a reminder of why I enjoy reading your weblog (by whatever name :-) ). I always come away feeling that I have learned something new.
Bill
Comment by Bill Day — May 10, 2004 @ 12:50 am
Thank you, Bill. I think this is the first time I’ve changed someone’s mind in 2004. It’s especially nice that it’s a thoughtful mind like yours.
Comment by David Giacalone — May 10, 2004 @ 1:10 am
Thank you, Bill. I think this is the first time I’ve changed someone’s mind in 2004. It’s especially nice that it’s a thoughtful mind like yours.
Comment by David Giacalone — May 10, 2004 @ 1:10 am
How much more consideration would a move be given if the move were being made because the primary custodial parent’s aging mom was ill, the non-custodial parent had frequently been in arrears with child support, and if the non-custodial parent were constantly in violation of court orders to stop talking negatively about the custodial parent, and if the child were threatening to kill the custodial parent or commit suicide as a result? All of this is being documented by a court-appointed therapist who continues to try to work with the dad, as do I. Another reason for the move is the ability to earn $7,000 more per year with tuition reimbursement that would allow me to earn $17,000 per year with the completion of a master’s degree. My mom is also aging, and none of my relatives or family friends can understand why I am not home taking care of her. I have been contacted by her doctors asking that I get a guardianship of her.
Comment by Laura Orlando — September 3, 2006 @ 12:54 pm
It sounds like you have a lot of valid points to make, Laura. I hope the court — or maybe a mediator — could help bring about an agreement that puts the child’s interests first. best wishes.
Comment by David Giacalone — September 3, 2006 @ 3:14 pm
I think law makers have totally overstepped their boundaries here. Why are lawyers deciding what happens to our children? I’m not understanding how a law degree makes one qualified to decide the fate of a strangers child. If the father is concerned about maintaining a relationship with his child he should have no problem flying to see her. Do you realize many people choose to not have children now for fear of court ordered control? This is still America, right?
Comment by Lisa — October 27, 2006 @ 2:48 am