Realistic Endings for Modern Fairy Tales

Question:

What fairy tale character does the modern American family most resemble and why?

Answer:

Humpty Dumpty. Because all the court orders and all the enlightened custody arrangements cannot put broken families together again.

This analogy, believe it or not, represents progress in the post-divorce Black Forest of conflicting parental needs, desires and aspirations. So often, when they all live unhappily ever after, parents pretend that divorce won’t radically alter the terrain of childhood. But how can it not?

No matter how hard they try, parents cannot re-create for their children whatever it was they had when a single roof sufficed. Parents remarry, have more children, take new jobs, choose to move. When this modern reality conflicts with the idea that children and parents should live in the same town, even if they can’t share a home, the courts have often stepped in, preventing a parent with custody from moving when the noncustodial parent objects.

Finally, though, the courts are catching up to the real world.

Last month, New York state’s highest court invoked the irreparable egg when it ruled that courts must take into account only the best interests of a child when a custodial parent seeks permission to move. A family rent by divorce, said that court, can never be put back together “in precisely the same way.”

Accordingly, it added, “It may be unrealistic in some cases to try to preserve the noncustodial parent’s accustomed close involvement in the children’s everyday life at the expense of the custodial parents’ efforts to start a new life or to form a new family unit. . . .”

On Monday, a unanimous California Supreme Court said much the same thing. Attempting to untangle a thicket of clashing appeals court decisions in the delicate custody conflicts known as “move-away” cases, the court ruled that divorced parents with custody may move--as long as such a move will not harm the children. A parent need not show such a move is necessary, only that the decision is being taken in good faith and not to thwart the noncustodial parent.

In the past, custodial parents--the majority of whom are women--have often been prevented by courts and ex-spouses from moving to take new jobs, to join new spouses who have taken new jobs, to study at universities, to be closer to family. Appellate court decisions--at least nine in California--have been inconsistent, in some cases allowing custodial parents to move, in others requiring them to forfeit custody if they do. (“Solomonic choices” with which no parent should be confronted, said the California Supreme Court.)

The New York and California decisions, long overdue, are big, bold steps into the real world, a place where it is senseless to pretend that divorce is anything other than a wrenching into pieces of something that used to be whole. With the California case, which turned on a Lancaster mother of two named Wendy Burgess who took a new job 40 miles away from her ex-husband in Tehachapi, the court also reinforced its position that a child’s relationship with his or her “primary caretaker” must be preserved. What is good for the custodial parent, said the court, is inextricable with what is good for the child.

This, of course, is what advocates for divorced women have been saying for years.

“I think this decision reflects a growing recognition on the part of the court about women’s lives,” said Abby Leibman of the California Women’s Law Center, which filed a friend-of-the-court brief in support of Wendy Burgess. “There is finally some recognition in the judicial system of who the primary caretaker is and what the ramifications of that are in a society that is mobile and an economy that is depressed. People need to have the flexibility to move.”

We are a nation that clings--with an almost pathetic tenacity--to an idealized version of what family should be. Last month, in an international poll, nearly half of American respondents said the ideal family is one in which the father works and the mother stays home with the kids.

This verges on tragicomic considering reality--that most American women work, that most American mothers work.

I don’t know anyone on either side of the move-away issue who thinks it’s optimal for children to live across state or across country from a parent. But life buffets us with hard choices. And the court, in a clear-eyed opinion by Justice Stanley Mosk, acknowledges this:

“Because of the ordinary needs for both parents after a marital dissolution to secure or retain employment, pursue educational or career opportunities, or reside in the same location as a new spouse or other family or friends, it is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution or to exert pressure on them to do so.”

Like Humpty Dumpty, broken marriages can’t be made whole. But unlike Humpty Dumpty, divorced parents have to be able to pick up the pieces and move on. Not fairy tale endings, say the courts, but fair ones.

* Robin Abcarian’s column appears Wednesdays and Sundays. Readers may write to her at the Los Angeles Times, Life & Style, Times Mirror Square, Los Angeles, CA 90053.