What Happens to Custody When One Parent Moves Away?

Spring in the Mojave Desert begins low on the desert floor with brilliant yellow tidy tips and blue and white lupine blooms pushing up along Route 14 between Lancaster and the foothills of Tehachapi.

Beautiful scenery, yes; and, under different circumstances, a very pleasant drive. But Paul and Wendy--formerly Mr. and Mrs.--Burgess have had quite enough of this ride. Or at least what it symbolizes.

For the last 2 1/2 years, this 40-mile stretch of the Antelope Valley Freeway has divided their lives and those of their two young children, who commute two and three times a week between their father’s High Desert ranch and their mother’s new home in Lancaster.

While every divorce breaks a family apart, it is the Burgess’ divorce--known in the courts simply as “in re marriage of Burgess”--that may well decide one of the most Solomonic questions in modern family law. That is, what happens to custody agreements when one parent moves away? When the California Supreme Court begins hearing arguments in the Burgess case today, it will mark the court’s first venture into the convoluted history of “move-away” case law. It is not known how soon the court will hand down its ruling.

Over the past decade, decisions by lower courts have gone in all directions. The confusion from a morass of conflicting decisions has been described by one court as a “tangled web of precedent.”

In the last decade, four of seven cases that were sent to appeal courts in California were decided in favor of the parent who wanted to move. The other three favored the noncustodial, or stay-behind, parent.

In one of the cases, the court allowed a mother with custody to move out of state over the children’s father’s objections. Her new husband, an unemployed aerospace worker, had found work in Alabama. The court ruled that his return to full employment would ultimately benefit the children.

In another case, the court refused a mother permission to move from California to Pennsylvania so she could be close to her family and to go back to school. Although the move offered the newly single parent child care and a chance to build her own career, the court ruled that her reasons for moving were “not compelling” enough to disrupt the father’s visitation schedule.

“We live in a very transient society. People have to move around for all sorts of worthwhile reasons,” says Susan Coats, chairwoman of the State Bar of California’s Family Law Section. “Is it fair to require people to stay in the same spot? Is it fair for children when moving with one parent deprives them of the other?”

With the state Legislature still grappling with proposals to legislate the move-away issue, family attorneys and judges throughout the state are waiting for the Burgess case to provide the answer.

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When Wendy met Paul, it was not love at first sight, but almost.

Paul, a big, good-looking cowboy from Tehachapi, worked with Wendy’s brother at the state prison there. Within weeks of being introduced, they were dating. Within six months, Wendy and Paul were married and expecting a baby.

The baby, named Paul David, had his dad’s deep blue eyes and his mother’s pale blond hair. “I remember the doctor asked me to cut the umbilical cord and I was so scared and so happy, so incredibly happy to have a son,” Paul recalls.

Less than two years later, Jessica was born--a sweet, green-eyed blond who likes to be called “Princess” and wear frills and lace.

By then, both parents were working for the state prison at Tehachapi. But as the children grew and thrived, their parents’ marriage began to splinter.

“There was just so much anger, so much animosity. I don’t know why. The marriage just fell apart,” says Wendy, 36.

“She said she wasn’t happy, but she couldn’t tell me why. She said she needed to go,” says Paul, 38. “And then she left.”

They were divorced in 1992, and in 1993 Wendy asked the trial court for permission to move to Lancaster with the children. Until then, she and Paul had shared most of the child-raising duties, although the court had given Wendy primary custody of Jessica and Paul David.

Lancaster, a one-hour drive from Tehachapi, held the promise of a counseling job at a new corrections facility for Wendy. In addition, “The school situation was a very big issue,” Wendy says. “Lancaster offered excellent schools, and so many more things to do--the zoo, the library, the museums. . . . As soon as the divorce was granted, I knew I wanted to move to make better living arrangements for the kids.”

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The court gave Wendy permission to move, and she did. But Paul went back to court to fight the decision. In 1994, a Court of Appeal sided with Paul, ruling that his visitation schedule and relationship with his children was “diminished” by the move.

By now settled into her new life in a peach-colored house on a cul-de-sac in a Lancaster neighborhood full of kids, Wendy decided to go back to court again to stay where she was.

Fast running out of money, she asked for help from high-profile Los Angeles attorney Gloria Allred, who offered to take the case without fee to the state Supreme Court.

“The Burgess case brings into sharp focus the dilemma of so many move-away cases. Here, Wendy is trying to move only a short distance away and the court effectively confines her to this one [Tehachapi] neighborhood, forcing her to forgo starting a new life after divorce,” Allred says.

According to court papers filed in the Burgess case, some 11.5 million minor children change residences annually. Within four years of separation or divorce, three out of four custodial mothers move at least once.

Often the geographical impact is far greater than the 40 miles separating the Burgesses. Paul’s attorney, Edward Quirk Jr. of Bakersfield, says most cases involve “a real severance” for children and the noncustodial parent.

“This is a case involving a rather insignificant distance, but the issues are in some ways more difficult since these are both such good, caring parents,” he says.

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Every other Thursday at about 2 p.m., Paul climbs into the 1988 Toyota truck he and Wendy bought when little Paul David arrived and heads over to the Antelope Valley Freeway for the trip to pick up Jessica, now 6, and Paul David, 8, at their grade school in Lancaster.

He arrives just as school lets out at 3 and the children crawl into the custom back seat for the ride back to his ranch. They have to leave Tahachapi at about 6:45 a.m. on Friday for school. He picks them up again after school and takes them home to the ranch until it’s time to take them to school on Monday morning. On alternate weeks, he picks them up Friday after school and returns them on Monday morning.

“To me, the biggest sin of all is my kids have to endure this drive back and forth,” Paul says. “I see them get carsick, fall asleep. . . . Sometimes they ask, how come you and Mom can’t be together?”

While neither Paul nor Wendy plans any reconciliation, both are torn by their children’s complaints.

“The children and I have built a wonderful new life here. We go roller-blading, we see movies, we visit our friends and play. I hope we don’t have to move back, but I would do anything in the whole wide world to keep my children and I will always do the best for them,” Wendy says.

“Every night at bedtime, I tell them, ‘Mom loves you. Dad loves you.’ Because that’s important. We both love them so much.”