Child Custody Rights Refined

The California Supreme Court made it more difficult Thursday for a divorced parent to move with children over the objections of the other parent.

The court’s 6-1 decision gives parents who lack custody -- generally fathers -- more legal weapons to fight to keep their children close, and weakens the right of custodial parents -- usually mothers -- to move to take a better job or for some other reason.

Courts always weigh competing interests in deciding custody disputes.

In 1996, the high court issued a ruling that directed judges to give more weight to a custodial parent’s desire to move. Supreme courts in several other states followed California’s lead after that decision, legal experts said.

Advocates for women had hoped the court would use this case to go further. Instead, the justices pushed the balance back the other way.

Judges must consider “the likely impact of the proposed move on the noncustodial parent’s relationship with the children” as one of the factors in deciding whether to approve a move, Justice Carlos R. Moreno wrote in the court’s decision.

If the evidence indicates that a move would harm that relationship and the parent with custody still wants to move, a judge “must perform the delicate and difficult task of determining whether a change in custody is in the best interest of the children,” Moreno wrote.

Lawyers on the opposing sides agreed that the decision would have broad impact, although they sharply disagreed about whether it would be for good or ill.

Thursday’s ruling “changes everything,” said Garrett C. Dailey, who represented the father in the case before the court.

Judges have been approving relocations because they believed “the mother’s right to move was so predominant,” even when the moves were across country or international, he said.

Now “the trial court is going to have the flexibility to consider what is in the best interest of the child,” Dailey said.

“This will have an effect across the country and for all California kids. It’s truly a landmark opinion, a monumental decision.”

Tony J. Tanke, who represented the mother, said the court “has taken a giant step backward” and “replaced a half century of law.”

“California’s custodial parents -- most of whom are mothers -- have lost the presumptive right to make decisions to better their lives and the lives of their children,” he said. “This is the worst day for children in the history of California.”

Tanke, the mother’s appellate lawyer, said the ruling would mean costly fights when a custodial parent tries to move.

“The Supreme Court decision requires a full custody evaluation and trial every time a parent seeks to move,” he said.

“Custody evaluations cost $5,000 or more. Trials cost $50,000 or $100,000. The bottom line is that custody evaluators and family lawyers get rich; mother and children are deprived of access to justice.”

The ruling came in the case of a Northern California couple with two sons. Susan Poston Navarro wanted to move to Ohio, where her second husband had found a better job and the cost of living was lower.

A trial judge prevented the relocation on the grounds that it would damage the boys’ relationship with their father, Gary LaMusga. The boys were then 9 and 7.

The judge, relying on an evaluation by a psychologist, said that the boys had only a tenuous relationship with their father and it might not survive the distance.

If Navarro insisted on moving, custody should be given to the father, the judge decided.

Faced with that decision, Navarro’s second husband moved to Ohio, leaving behind her, the two boys and a baby daughter they had together. He eventually moved back to California, taking a pay cut, to be with his family.

An appeals court later overturned the trial court’s decision, saying that under the 1996 ruling, “Marriage of Burgess,” the mother had a presumptive right to change her residence and take her children.

The state high court sided Thursday with the trial judge.

In deciding whether to transfer custody away from the parent who moves, judges should consider several other factors, including the need to maintain stability for the children, their ages and relationships with both parents, the reasons for the move and the distance of the move, the state high court said.

Justice Joyce L. Kennard dissented, arguing that there was no evidence that the trial court had considered the harm to the children of transferring custody to the father if the mother moved.

“The trial court said that moving the children to another state could damage the children’s relationship with their father, but the court never mentioned the potential harm to the children from losing their mother as their primary caretaker,” Kennard wrote.

Kim Robinson, who represented Navarro in the trial court, said legal research shows that judges already tend to be biased toward preventing mothers from relocating when fathers object.

“Fathers can move away with kids, mothers cannot,” she said.

By giving trial judges so much discretion, the court permitted “any reason at all, no matter how whimsical or flimsy” to stop a mother from moving with her children, Robinson said.

For the children of Susan Navarro and Gary LaMusga, Thursday’s ruling may be moot.

The mother moved a year ago to Arizona with the boys, who are now 11 and 9.

A trial judge permitted the move pending the state high court decision. The boys visit their father regularly in California, and he visits Arizona.

LaMusga, 51, reached Thursday, said he was “very excited because this will positively affect what is best for the children of California.”

As far as his own children, he said, he was not sure what the impact of Thursday’s decision would be.

The case will return to a trial judge to resolve the custody issues.