Moving? Not if you want to keep custody

In the bleak legal ritual of divorce, family courts oversee division of what two people had when they lived as one: the house, the cars, the tools, the stocks, the dogs -- and the kids.

Of course, children cannot be divided like community property. They usually love both parents equally. And family court has no jurisdiction over love; it is there to preside over legal aspects of its dissolution. That is why so many California family court judges say that child custody disputes are the most perplexing ones they encounter.

Now they will have an even more daunting task, one that makes an already complex issue even harder to assess. A recent decision by the California Supreme Court rules that custodial parents (80% of whom are women) cannot easily move away with their children if the other parent objects. If they move, they now may lose custody.

In its wake, the decision leaves some families putting their lives on hold and others dealing with messy -- and costly -- legal maneuverings.

Even before this ruling, move-away court cases had become more prevalent and more contentious as society became more mobile, divorce more frequent and fathers more active in their children’s lives.

As California’s cost of living soared and homes became more unaffordable, a large number of divorced parents with custody started to think of moving somewhere less expensive.

Many noncustodial parents, understandably, were distraught at the thought that they might no longer have the midweek overnights and weekends with their children. Nor could they afford to fly cross-state or cross-country to visit them with any frequency. The law before the April 29 decision, however, gave custodial parents loose guidelines under which they could move.

Under a 1996 state Supreme Court decision called the Marriage of Burgess, parents had the presumptive right to move unless it could be proved that the move would be “detrimental” to the children. Moving away from one parent was not generally considered a detriment by the court.

The new ruling has changed all that; a child’s ongoing relationship with the noncustodial parent is now a paramount concern.

And that makes fathers like Eric Traub of Marin County extremely happy. Traub and his ex-wife, Tina, were divorced in 1995 when their daughter was 5. Tina remarried three years ago and decided to move to Costa Rica with her new husband and daughter, now 14. Traub objected.

He hired two lawyers -- one for the initial trial and then another for the appeal. The courts decided that his daughter could not be moved until she turns 15. While he is uncertain what effect the recent decision will have on his case, Traub says he will go to court again to block the move at 15.

He spends just under half of each week with his daughter, he says. He drives her to and from school, and helps her with her homework.

He says she doesn’t want to move away from him, certainly not to a foreign country. But she loves her mother too and feels bad to be thwarting her desires. “No child should be asked to decide which parent she wants to give up,” Traub says.

His ex-wife, who does not want her last name used, said in a phone interview that the case, which has gone on for four years, is not exactly as her ex-husband presents it.

“At the outset, I thought it would give my daughter a chance to see something different than Mill Valley,” Tina says. “She was very excited about it at first. We took her to visit and she had a fabulous time. At the time we told her dad about the proposed move, he was spending two weekends a month with her. Suddenly, he wanted to spend more time with her, which has been wonderful. But now she’s become afraid to discuss a move because it brings such wrath down from her father. He’s convinced her she would never see him again.”

Tina says the move “was never about taking her away from him. We would never do that. She would have spent all her vacations with him here in California, and he could have come to visit.”

Feeling stuck

Deborah Edelman of Berkeley was married for 4 1/2 years. She and her husband had two children but the marriage was rocky from its start, she says. “When he moved us from San Francisco to Berkeley, I thought it was to make a new beginning. Then I realized his plan was to get us into a more father-friendly jurisdiction. Alameda County is known for that.”

She left him in 1997. He filed for sole physical custody of the children but was awarded only two nights a week. She wanted to move away right then, but “my lawyer told me not to try because I might lose custody of the children. That was 1997 -- and he has papered me to death ever since. He litigates and litigates and re-litigates everything. He has the money to do that; I’ve spent everything I have. He has won increased custody time and has lowered my child support,” she says.

Through it all, she has made her way through a graduate program at UC Berkeley and has received a doctorate in public health. She spent last year job hunting, she says, but got no offers in California, though she did get one in Maryland.

“I have an offer from Johns Hopkins University for a post-doc fellowship in adolescent health. I wrote a letter to my ex, explaining that I intended to move. He wrote back saying he would vigorously oppose it,” she says. She says she won’t move until she knows she’ll be allowed to by the courts.

Many divorce attorneys cite examples of clients who were allowed by their former spouses to move away with the kids for the specific reason of finishing their educations. If such a move is temporary and amicable, and the kids continue to visit and talk to the other parent frequently, it can be a good thing for all concerned, the lawyers say.

There are no sure answers to any of the quandaries presented by parents who want to move away. Attorneys say the smartest route is for parents to settle it amicably between themselves or through their respective lawyers, without taking it into court. That’s what is best for the children and best for the bank account. It’s better to spend it on the kids’ education than in the courts, they say.

Last year, Cynthia Jackson lost custody of her daughter, then 5, and was not allowed to see the child for seven months. She has seen her four times since, in supervised visits.

Jackson had moved with her daughter from Oakland to Detroit, where she had family, the cost of living was lower and she could find more lucrative work. Her ex-boyfriend, the child’s father, hired a detective to find them and obtained an emergency court order giving him full custody. Jackson was returned to California in shackles and chains, by bus.

“I did not leave town irresponsibly,” she says in a phone interview. “I phoned my lawyer and asked if I could. She said yes, that under Burgess I had the right to move.” She tells a tortuous tale of what led to the move: loss of her job, eviction by her ex-boyfriend, who owned the apartment in which she lived; multiple legal skirmishes instigated by him. Emotionally drained, she left town on the day the eviction notice was served.

Her ex-boyfriend, who spoke on condition that his name not be used, calls the case “sort of a tragedy.” He says he never accused her of being a bad mother, in fact, a court-ordered evaluation gave her “a glowing report.” But he got one too, he says. And she had no right to leave without notifying the court and him. Jackson’s attorney, Kim Robinson, says that under the Burgess decision, which was in effect at the time, custodial parents did have the right to move. Robinson says neither she nor her client, Jackson, knew of any emergency orders issued by the court to prevent relocation.

The April California Supreme Court decision, in a case called the Marriage of LaMusga (pronounced La Mooshay), leaves little room for such mixed interpretations.

In the 6-1 decision, judges said that the interests of the children must come first. Judges must consider “the likely impact of the proposed move on the noncustodial parent’s relationship with the children” before approving a move. If evidence shows that the relationship would be harmed, judges may give custody to the other parent.

In other words, the parent who has custody can leave town -- but not without the risk of losing the children.

More court cases expected

It is too soon to tell exactly how this new ruling will play out.

Those who like the decision (mostly fathers’ rights advocates) and those who hate it (mostly advocates for women) all agree that it will lead to more time and money spent in court, more emotional chaos as both sides try to prove that the move either should or shouldn’t occur.

Sometimes both sides will be right. The move might result in a happier, healthier lifestyle for the kids but might also be detrimental to their relationship with the parent left behind. It’s hard to maintain closeness with a child you infrequently see.

Garrett C. Dailey, an Oakland attorney who represented the father in the state Supreme Court case, says it was neither a fathers’ rights case nor was it anti-mother. “Our focus was always on the rights of the child. My opening question in court was, ‘What happens when the desires of the custodial parent conflict with the child’s best interest?’ The judges decided the children would best be served by their not moving away from their father and their environment.”

Tony J. Tanke, the attorney who represented the mother in the Supreme Court case, says, “This decision will impact every custodial parent who wants to move in the future.”

The litigants were Susan and Gary LaMusga, who married, had two sons (now 10 and 12) and divorced. She remarried and wanted to move to Cleveland, where she had family and where her new husband, Todd Navarro, had gotten a better-paying job.

Among other reasons for the move: The Navarros were living in a small rental house in Northern California, where they saw no hope of buying a home. In Cleveland, they could afford a nice one. The boys’ father opposed the move in a long battle full of byzantine legal twists and turns.

While the case worked its way through the courts, Todd Navarro got an even better job offer in Arizona, where they now live with the approval of a lower court. The kids visit their father monthly, and he has the option of visiting them in Arizona.

“From now on,” says Tanke, “mothers who want to move against the fathers’ wishes will have to go before a judge who will order an evaluation, which will be followed by a trial.” Psychological evaluations cost from $5,000 to $10,000. Specialists called in to refute the evaluators’ findings cost yet another bundle. Trial lawyer fees run from $50,000 to $150,000. “This favors the richer party, who is almost always the dad,” Tanke says. “In general, it will adversely impact only middle- and lower-income parents.”

Dailey disagrees. “It will have little or no impact on most cases,” he says. “Custodial parents still have the presumptive right to move, if the move is for good reason and in good faith, and the custodial parent has fostered a good relationship between the other parent and the child.”

But who is to determine these things? A judge, who has spent a few hours reading the case history? A psychologist/evaluator, who may have an inherent bias toward a particular parent’s cause? Justice is far from swift or sure, Tanke says.

“Guess what? There’s an evaluators’ industry out there, and you have people on each side,” he says. “Lawyers know who has a track record on the side of mothers and on the side of fathers. If the lawyers are smart, they won’t agree on who the evaluator is. If they can’t agree, it goes to the judge. The judge has his own list that represents his own personal biases.”

Tanke believes the power of evaluators and trial judges will now be absolute.

In the LaMusga case, an evaluator found that the mother’s planned move to Cleveland would mean an increased standard of living and an improvement of the family’s “inherent quality of life.” In his report to the court, he also said that changing custody from the mother to the father would have a “significant detrimental effect on the children,” who had been in their mother’s care since the divorce.

To top it off, he observed in a report to the court that the father is “somewhat self-centered and doesn’t seem to deal with the boys’ feelings that well ... he is a bit detached from them and has a hard time interacting with them when they are with him.”

Yet the California court ruled that if Susan Navarro moved, custody of the children should shift to the father. Judges based the decision, in part, on another finding of the evaluator: Navarro had been “uncooperative” with her ex-husband, her animosity toward him had filtered down to the children and there was no assurance that if she moved to Cleveland she would foster a close relationship between the boys and their father.

A petition for a rehearing of the LaMusga case has already been filed.