Caught in the Middle : Custody: The newest wrinkle in divorce cases is that parents wanting to move out of the area might have to leave the kids behind.

When theater audiences first saw the movie “Kramer vs. Kramer” in 1979, they had little way of knowing that what they were seeing actually was a prescience of a legal trend that would sweep the nation in the years to come: After a divorce, a father argued in court that he was just as capable of having custody of the couple’s son as his ex-wife.

If that same movie were made today, however, chances are good it would deal with an even thornier custody issue.

Audiences might well see a divorced parent asking a family law court for permission to move to a different city or state--only to find that to do so might mean leaving the kids behind.

That already has been the central theme of two real-life cases--one in Ventura in 1990 and the other in Santa Barbara last year--that attorneys say undoubtedly will have an impact on similar court battles around the state.

“In my experience, and in the experience of many other family law attorneys I know, there are a lot more of these kinds of cases,” said West Los Angeles family law attorney Forrest Mosten.

“And the trend now is against allowing the move away to occur, unless there is strong evidence of why it is in the children’s best interest,” Mosten added. “It doesn’t even matter anymore if it’s sole or joint custody. You can’t just up and leave anymore.”

Mosten isn’t the only attorney who has seen an increase in what commonly are being called “move-away custody cases.”

“This used to be rare,” said Betsy Apple, staff attorney with the pro bono legal services division of the San Francisco Bar Assn.

“Bear in mind, too, that our clients here are indigents and they are not as mobile. But even among very poor people, we’re seeing that it is happening more.”

Apple said court requests to relocate are made for a variety of reasons.

A parent--often the one with primary physical custody--may wish to be nearer to other family members for increased emotional support. One parent may be trying to escape an abusive situation with an ex-spouse. Or the parent may be attempting to “cut the other parent out” by moving away.

But according to several attorneys and judges statewide, none of those reasons is believed to account for the flood of recent court cases--many of them reaching the appellate level--that deal with divorced parents wishing to alter their custody agreements.

“There are layoffs going on all over the state, businesses bailing out of the state because of environmental rules, and there’s this mass exodus that’s making this whole problem appear,” Camarillo family law attorney Edward Matisoff said.

Like many attorneys contacted, Matisoff said he first began seeing more of the move-away cases as the economy worsened. Although Ventura County’s jobless rate is not the worst in the state, last year it had shot well above the national average to a 10-year high of 10.2% in November.

At year’s end, a report issued by the state Employment Development Department found that the county had at least 5,100 fewer jobs than the year before. Particularly affected were the construction industry and agriculture, which each lost 1,000 jobs; government--especially military positions--with 1,100 lost jobs; the retail trade, with 600 fewer positions, and the manufacturing sector with 500 fewer jobs.

“People need to find a place to work and they need to go where the jobs are,” Matisoff said. “But a lot of times, that’s flying in the face of custody orders.”

Legally forcing a parent to choose between a job and a child may sound cold-hearted on the surface. But Ventura County Judge William Peck, who until last month had worked for three years in the family law division, said the courts have been put between the proverbial rock and a hard place.

On one side is an economic crisis that has had a dramatic impact on many parents’ ability to earn a living.

On the other, he said, is the obligation to uphold the 1979 California Civil Code that states: “It is the public policy of this state to assure minor children a frequent and continuing contact with both parents after the parents have separated or dissolved their marriage. . . .”

“Certainly the economy in California has plummeted, far worse than the rest of the nation, and a lot of the cases are based on that,” Peck said.

“But a child who has the support and love of both parents also is far more likely to grow up into a happy adult. And the definition of a move-away is that (the child) will spend less time with both parents.”

Simi Valley family law attorney William R. Robinson said an important trend in the courts has been to consider the impact the move would have on the non-moving parent. Until as recently as a few years ago, he added, parents with sole custody could pretty much travel where they pleased.

“In other words, whether it is mom or dad who wants to move, (the courts) want to analyze what their relationship has been,” Robinson said.

“If there has been regular visitation, the courts will be very hesitant now to disrupt that parent just so the other can improve his or her economic lot somewhere else.”

Mosten recalled one such case in which a divorced, unemployed mother wished to remarry a man who had a steady job in another state. The court, however, denied her request to take the children with her.

Eventually, Mosten said, the woman’s relationship with the man broke up because of it. “She couldn’t go and he couldn’t leave, so that was it,” he said.

The court had based its decision on a 1991 San Diego case called Marriage of Carlson , in which a divorced mother with joint custody asked to be allowed to return to her family in Pennsylvania.

Although the mother argued that her ex-husband’s lack of regular contact with the children shouldn’t supersede her right to move, the state Court of Appeal disagreed.

The justices said that although the mother’s argument would have been correct in an earlier day, “current public policy mandates that when the court evaluates the children’s best interests, it must consider a non-custodial parent’s ability to exercise visitation” in order to protect the kids’ relationship with both parents.

“I guess the thinking is that, in a lot of cases, a parent who can’t move with the kids will end up staying,” Camarillo attorney Matisoff said. “If they don’t, custody then goes to the other parent.”

Even extreme financial need may not play a role. One unemployed mother with primary custody petitioned the court to move so she could accept a job. She, too, was denied her request because it would interfere with her ex-husband’s visitation.

“It seems now that even being destitute may not be enough of a reason to leave,” Mosten said.

So does that mean that all requests to move will be turned down by the courts? Attorneys and judges say no. But they also said there is no way to predict which parents will be allowed to go and which ones won’t.

“It’s a crapshoot,” Mosten said.

Said Matisoff: “You can get one judge who goes against you, and there may be five others who would go the other way. You just don’t know.”

So why the disparity and uncertainty?

Peck said that trying to address both the parents’ and child’s needs is never an easy task. In family law court, he added, “there are no winners. Your ultimate task always is to consider the best interests of the children, even if that can be tragic for the parents.”

But compounding the problem, Peck said, is the lack of cohesive or consistent guidelines by the appellate courts. Because of that, he said, lower courts often must grope in the dark and make judgments on a necessarily case-by-case basis.

And often, he added, their decisions are overturned for confusing reasons.

“The court of appeal cases on move-aways are all over the map,” Peck said. “It’s difficult to know what to expect. And to try to map out some reasonable logic from what we’ve got will drive you mad.”

As a case in point, Peck recalled one single mother with primary custody who lost her job with a bank last year when it merged with another and closed numerous branches.

The woman, whose children were used to regular contact with their father, was given the option of retaining her job if she relocated to Sacramento. The father sought to restrain his ex-wife from leaving.

Peck’s ruling would seem to have been in keeping with the 1991 Carlson appellate decision. “In this case, I indicated I felt her reason did not outweigh the needs of the children to have both parents,” Peck said. “In my opinion, she could have gotten a job of equal pay in the same area.

“But she appealed it and won,” Peck added. “I was reversed. And the crazy thing was, it was the same week of McGinnis .”

Marriage of McGinnis was a landmark 1992 case involving a Santa Barbara husband and wife who divorced in 1990 and who had joint custody of their three children. The husband, a highway patrol officer, remained in the family home, where the children stayed three days a week. He later remarried.

The wife, a part-time waitress, then remarried a football coach who soon lost his job but was offered another in Arcadia. The wife sent a letter to her ex-husband, informing him she planned to move with the children in two weeks. The husband sought to restrain her from leaving.

The trial court denied the husband’s motion for an outside evaluation to determine whether the change would be in the children’s best interest. It granted the wife permission to leave.

But the lower court’s decision was overturned on appeal and the children moved back to Santa Barbara.

That decision, which now is cited in cases throughout California, stated that in move-away cases where a shared parenting arrangement is working, an order to change custody first requires outside evaluation and at least 45 days notice before moving--and then the move can be made only for “an imperative reason.”

The stumper for many parents, of course, is what constitutes “imperative.”

“Who knows?” asked Santa Barbara family law attorney Brian Burke. “Getting into a Ph.D program is nice, but it’s not essential. But how about getting a role on Broadway? Or a new mate? Which way will the courts go?”

That last question is one that many single parents began asking with more frequency, especially after the wide publicity surrounding a 1990 Ventura County case, referred to by attorneys as Fingert .

Although the case did nothing to clear up the question of which parents will be allowed to move away, it was significant because it spelled out that the flip situation cannot take place: A court cannot compel one parent to move closer to the other just to facilitate regular visitation.

Michael Fingert had filed for a divorce from Pamela Besser when she was nine months pregnant in 1982. After their son Joshua’s birth, Besser was given sole custody, an order that later was modified to give the father 37% custody and the mother 63%.

Besser then moved from Ventura to San Diego, and then to San Francisco in 1985. To comply with the custody order, Joshua flew every fourth week to be with his father, necessitating that he be enrolled in two schools.

When Joshua’s grades and friendships began to suffer, Besser returned to Ventura County Superior Court in 1987, seeking to modify the custody agreement. She was given a startling choice: Move back to Ventura County or give up custody of her son.

Besser moved but filed an appeal through the American Civil Liberties Union. The lower court’s decision was overturned.

“Pamela cannot be ordered to choose between her right to resettle, find new employment, start a new life and retain custody of her child,” the ruling stated. “There is no justification for the order requiring Pamela to either relocate (to Ventura) or lose custody.”

Since then, the couple have gone back to court several times over visitation schedules. Joshua, for now, lives most of the year with his mother in the Bay Area.

Still, many attorneys believe that if Besser had sought to move to San Francisco in 1993--and not in 1985 as she did--she might not have been permitted to leave at all.

“There has got to be a cultural message in all these cases somewhere,” said Burke, the Santa Barbara attorney. “We are obviously doing something wrong, and the culture doesn’t know what the rules are either.

“It does seem that the trend is now likely to go in favor of the remaining parent. But what are the factors that will be considered? What will be the basis of a decision for the child’s best interest?

“Right now, we just don’t know.”