Straining Family Bonds

Four years ago, a state Supreme Court ruling in a bitterly contested custody case made California one of the easiest states in the nation for parents with primary custody to pack up the children and go.

But only now are lawyers, judges and ex-spouses in Ventura County and across the state fully gauging the effects in family court.

Divorcing parents are fighting more fiercely over custody agreements, drawing out the cost of litigation.

Children are being shuttled more frequently between parents’ homes as moms and dads fight for the greatest share of time.

And judges are frustrated that they are now not allowed, in many cases, to take into consideration the needs of children when granting a move-away request.

Ex-spouses are also squabbling over whether the new rules help women build a better life or unfairly diminish the bonds between fathers and children.

Mothers tend to be the beneficiary because they are given primary custody in an estimated 60% to 80% of California cases.

Fathers’ rights advocates in recent months have pushed for legislation that would spell out how much time dads should fight for in custody agreements to make sure they are entitled to at least a court hearing if a former spouse decides to relocate.

“You can’t be nice and wait for shared custody,” said Richard Bennett, who heads Coalition of Parent Support, a statewide group that advocates fathers’ rights. “You have to ask for it right up front. And that tends to increase the conflict between divorcing parents.”

Indeed, the state Supreme Court ruling changed the balance of power in divorce court.

Previously, judges had routinely prevented parents from moving distances that made visitation difficult.

But the state high court said that if the parent who spends the most time with the children wants to relocate, the burden is on the other parent to prevent it.

Feminists say the change is merited.

For too long, ex-wives were told to stay in the same geographic area as their former spouse to preserve the father’s right to visit children.

Women should have the same freedom to move as men, they say.

As policymakers debate the fallout, families all over Ventura County are dealing with the consequences.

The new system is the reason Mike Giuffre hasn’t seen his son since Thanksgiving.

Giuffre, a Westlake Village accountant, found there was nothing he could do--despite spending $100,000 in legal fees--to stop his ex-wife from moving to San Diego with their disabled son.

“It’s now gotten to the point where I don’t know what to do,” said Giuffre, who believes his ex-wife moved just to make visits more difficult, a charge disputed by her attorney.

For single Ventura mother Pandora Farber, it meant the freedom to move to Antioch with her 8-year-old daughter from a previous relationship and marry a paint contractor.

“He has a good job. He owns his own home. He was very settled in Antioch,” Farber said of her husband. “In Ventura, I was renting an apartment and working three jobs to support myself.”

The case that started this involved Wendy Burgess, a divorced mother who wanted to move 40 miles from Tehachapi with her two young children to take a career-advancing position in Lancaster. Her ex-husband challenged her decision and it ended up in the Supreme Court, with the justices ruling that the parent with primary custody can move away even if the other parent objects.

Lawyers now routinely advise clients to make sure joint custody agreements are not just in writing but that children actually spend close to half their time with each parent.

Judges weigh that as a crucial factor when considering whether to allow a move-away. But the motivation to seek 50-50 physical custody often results in a court war as ex-spouses battle over how many hours of their children’s time each gets, attorneys said.

The legislation Bennett’s group is supporting would specify how much time parents must spend with children to entitle them to a court hearing if the former spouse decides to move away. Coalition of Parent Support believes a mandatory hearing should be triggered when one parent has at least 30% custody.

“That would be the standard visitation schedule of every other weekend and one night a week that many fathers get,” Bennett said.

But even when parents have equal custody, it is up to the parent staying behind to prove that a move would seriously traumatize a child--a tough standard to meet, attorneys say.

“Before, mom had to show some good reason to move,” said Ventura family law attorney Donald M. Adams Jr., an expert on move-away issues who wrote the initial Burgess appeal. “Now the burden is on dad to show how it is detrimental to the child.”

Requests to move are occurring more frequently because of the change in law, said Janet M. Bowermaster, law professor at California Western School of Law in San Diego. One California study showed that one of three contested custody cases involved a move-away issue.

Ventura County has always had a high number of divorce cases with move-away requests because of a mobile population at two naval bases, said family court Judge Melinda Johnson. Johnson called the Burgess decision a “bizarre ruling” that many judges don’t like.

“Mrs. Burgess moved 45 minutes away. People commute that far all the time,” said Johnson, a veteran family court judge. “But most of the move-away cases that we deal with are for distances much farther” and involve more complications.

States have slowly given more flexibility to custodial parents who want to relocate, said Bowermaster, who wrote a 1998 Kansas Law Review article comparing move-away decisions across the country. Today’s laws are a long way from the 19th century, when American common law and statutes recognized the husband’s legal right to control where his wife and children would live, she said.

Women gradually earned their own rights and with the transition to no-fault divorce in the 1970s and ‘80s, gender equality replaced the dominant role of husbands in legal proceedings. Bowermaster believes vestiges of male dominance are still embedded in the American culture, noting that couples still tend to live in the place chosen by the husband to accommodate his job.

After divorce, many states still place limitations on the ability of the custodial parent to move unless the ex-spouse gives permission. Before the Burgess case, California judges often did not allow a move unless the mother could provide a compelling reason, such as a new job or marriage.

The 1996 ruling removed that requirement, freeing a custodial parent to move for almost any reason. California is now one of the most liberal states in allowing move-aways, along with Minnesota, Florida, Wisconsin, Montana, Tennessee and South Dakota, Bowermaster said.

The law professor believes it is good law.

“If you look at the appellate cases, you will see judges using demeaning and degrading language about the mothers,” the professor said. “Those judges are only controlled by this decision. If it were up to them, a woman would never get out of town.”

But advocates for fathers’ rights say it goes too far, putting greater emphasis on what is best for the moving parent than on what is good for the children. Fathers increasingly are more involved in their children’s lives, and moving them across the country, or even three hours away, disrupts the bond, said Bennett of Coalition of Parent Support.

Frequent phone calls and e-mails do not make up for the loss of being together, Bennett said.

“You can’t give someone a hug by e-mail,” he said.

The Burgess decision followed nine California appellate rulings in such cases. In five, the courts prohibited the move. The most infamous of those happened in Ventura County, when Pamela Besser Theroux, formerly of Ventura, moved to the Bay Area in 1985.

Because Theroux and her ex-husband, Michael Fingert, had joint custody, their 6-year-old son, Joshua, was put on a plane to visit his father every fourth week and was enrolled in two schools. Within a year, the trips were causing Joshua severe stomachaches and crying jags, according to his mother.

She and the boy returned to Ventura County Superior Court seeking a new custody order. Instead, Judge Charles R. McGrath ordered Theroux to move back to Ventura County with Joshua or give up her child. After Theroux appeared on the “Oprah” show, she was contacted by the American Civil Liberties Union and appealed McGrath’s decision to the state 2nd District Court of Appeal.

In July 1990, the appeals court overturned the order by McGrath, who has since retired from the bench, ruling that it violated Theroux’s constitutional right to travel.

“It was probably the first case that stood for the proposition that a custodial parent could move away,” said lawyer Adams, who represented Theroux on appeal. “There were many cases thereafter that ultimately resulted in Burgess at the Supreme Court.”

Now, there is little a noncustodial parent can do to stop a move unless he or she can prove it is being done in bad faith--for example, that the moving parent is trying to frustrate the noncustodial parent’s time with the child.

Bennett said that is a nearly impossible standard to meet.

“It presumes you have some knowledge of the other person’s motives, which is difficult to do,” he said.

It did not succeed for Giuffre. After his marriage broke up in 1996, it was a constant battle for him to see his son, according to the 55-year-old father.

“Something always came up,” he said. “Bottom line, she didn’t want me to be part of his life.”

His ex-wife, who had primary physical custody of Mikey, petitioned the court to move close to her parents in Bullhead City, Nev. The court allowed the relocation.

But Rhonda Giuffre instead moved to San Diego. Her attorney, Marian L. Stanton, said her client changed her mind because a friend offered her six months of free rent. When Michael Giuffre asked the court to reconsider custody, Ventura County Judge John J. Hunter refused.

Hunter agreed with a psychologist’s recommendation that the 6-year-old boy, who had the developmental level of a 2-year-old, stay with his mother. The judge said the father could still visit regularly as long as a nurse was present to help with Mikey’s tracheal tube and other medical equipment.

“The question before Hunter was what would be more devastating to the child: to lose contact with the mother or to lose visitation with the father?” Stanton said. “[A psychologist] said this child would fail to thrive if removed from the mother. This is a child who has serious medical problems. And the mother had been providing all of that care.”

Stanton disputes Giuffre’s contention that Rhonda Giuffre’s real goal was to frustrate her ex-husband’s attempts to visit Mikey.

“Absolutely not,” the Encino attorney said. “Judge Hunter found that she had not interfered.”

Noncustodial Parent Faces Many Challenges

Because of an increasingly mobile society, attorneys predict move-aways will continue to increase. For parents left behind, the focus shifts to how to maintain strong emotional bonds with children.

Pandora Farber’s daughter, Nici, had been visiting her father’s Ventura home three weekends a month before Farber successfully petitioned the court to move to Antioch. For two years, Nici spent every school holiday and vacation flying from the Bay Area to Burbank Airport to visit her father in Ventura.

Farber said back-and-forth flights each year became too hard on Nici, now 11, and her grades began to suffer.

“My daughter needs the stability of a home,” said Farber, 35, now a stay-at-home mom who also attends classes to become a computer systems administrator. “She was on a plane 24 times last year. And that’s way too much.”

Farber and Nici’s father, Andrew Gilman, recently worked out a new agreement that allows their daughter to stay with her mother during half of holidays and vacation. That has cut her flying time in half, and according to Farber, the adolescent is doing much better in school.

The parents also agreed to split the $82 round-trip fare for Nici’s flights.

Gilman, 30, a graphic designer, says he tries to stay in touch with Nici by calling and occasionally sending packages filled with little gifts from a dollar store they frequent when she is in town. Gilman and his wife also sent snapshots of a mall renovation and construction of a gazebo at a park Nici loves to visit to keep her connected to the city of her birth.

“We want her to really feel like this is still her community,” Gilman said.

Still, as Nici grew older, she told her father that she wanted to spend more time in her Antioch home. Although that hurts, Gilman said, he sees his daughter’s growing independence as a consequence of both adolescence and distance.

“That is a natural and inevitable outcome when someone lives a flight away,” he said.

Bennett said his group is pushing for legislation that would offer a compromise: banning move-aways for the first three years after a separation. That would give children a period to adjust to their parents’ divorce before the second trauma of relocation.

It also would give both parents a lengthy cooling-off period in which they might find a better solution for everyone, Bennett said.

“We tend to think children are resilient, that they can adjust to anything,” he said. “That’s not true. They still suffer, whether they show it or not.”

But Bowermaster said recent research indicates that even with joint custody, a child tends to drift toward one parent’s house--usually the mother. And that parent should not be locked into one area, the law professor said.

Bowermaster also pointed out that the Burgess decision helps fathers, too, if they have primary custody. After her own divorce, she agreed to let her daughter remain in Michigan with her ex-husband when she moved to San Diego.

“I’m not saying I didn’t cry all the way to California,” she said. “But the best way I could love that little girl was to be supportive of her dad in his caretaking.”

One thing is clear, said Scott A. Altman, a USC law professor specializing in divorce. Custody law is a contentious area that will continue to evolve.

“In the end, I tend to support the Burgess decision,” Altman said. “But I feel very torn about its effects.”