Q

Judge Melinda Johnson has been on the Ventura County bench for 17 years and has presided over family law court for several years. The Times asked Johnson for her views on so-called move-away cases, in which a custodial parent asks the court for permission to move to another city or state with the children, even if the other parent objects.

Q: In 1996, the California Supreme Court ruled that a custodial parent has a right to move to another city or state, even if the other parent objects, unless there is evidence that such a move would harm the child. Why did the court rule this way and how has the so-called Burgess decision impacted the way you deal with relocation requests in your court?

A: [State Supreme Court] Justice Stanley Mosk [who wrote the Burgess opinion] is an old-fashioned liberal. And he has some old-fashioned ideas about children and child-rearing. He has said for a long time, through opinions and ruling, that, generally, custody means custody. When a couple splits up, one parent raises the kids. And that parent should be able to do generally what she wants to do, as long as it’s not a bad thing.

Why they let him write this opinion, I don’t know. It could be his long-term interest in the issue. The other thing I don’t understand, and I don’t think anybody does, is why on earth they [the state Supreme Court] chose the Burgess case. Burgess is not helpful for trial court judges, because it made law in an unusual move-away case instead of the typical case that comes before judges. Mrs. Burgess moved 45 minutes away. People commute that far all the time. But most of the move-away cases that we deal with are for distances much farther [and thus involve more complications].

The appellate cases that have come down since have revolved around the percentage of time that each parent spends with the kid. The kinds of things that we face as judges are about schools, friends, households. Mom, let’s say, wants to move to Minnesota and the child is 11. [The child] has gone to the same schools all her life, has had all the same friends. The question arises on a daily basis, what is the status quo? You are disrupting the status quo seriously when you move them away from everything they have known all their life. With a child who is 2, it is a different thing.

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Q: How has the decision impacted children?

A: For the older child, there are more factors that come into the mix. What Burgess basically tells us is that you can’t give custody to the parent staying behind unless you can show a substantial change of circumstance. If you have a child who is 11 or 12 years old, in junior high, with all that that entails--the insecurity, the need for your peer group and so forth--it may be detrimental to the child to move away. So you have a lot more social factors to look at. The harder ones to deal with are the emotions of a very young child. A 12-year-old can move away to Minnesota and come back for summers and still have a good relationship with the staying parent. A 2-year-old can’t do that. You can’t send a 2-year-old away for two months and you can’t deprive a 2-year-old of a parent for three months without detriment. Those are terrible cases where it is just impossible to do something good for the child.

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Q: How do you decide in a case in which both parents are very involved and want custody?

A: Basically, if one parent has true physical custody and the other parent has very secondary physical custody, the law requires you to allow the parent to move away unless the parent is doing it for a bad reason. And we do have parents who want to move just to punish the other parent or just to get away from him. Burgess eliminated the requirement that a parent must have a compelling reason to move away.

You used to get women who would say, “I want to move to Alabama because I have family there.” And that would not be a compelling reason and probably would not be allowed. Now, she can just say, “I want to move to Alabama, because I will be happier there,” and we have to allow it. The burden of proof is on the remaining parent to show the detriment to the child. And that is very hard to do.

We use psychological evaluations quite a bit to tell us about the involvement of both parents and the potential trauma to the child because of the move.

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Q: If it comes down to percentages of time spent with the children, what is the dividing line?

A: I have no idea. In one [appellate opinion], the remaining parent had custody of the child 40% of the time and that did not tip it. It involved a parent who had alternate weekends that ended on Monday mornings, he had weekly overnights and lengthy time in the summer. It was a genuine shared-custody arrangement. And the court said that was not enough and allowed the mother to move away with the child. Any case will find that 20-25% is not enough to tip it.

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Q: Has this led to non-custodial parents [usually the father] fighting more fiercely for physical custody?

A: After Burgess, we saw people not wanting the phrase “primary physical custody” in their custody agreements, and I was very happy to eliminate that. The custody agreement would say instead “joint physical and joint legal” and spell out where the child would live on specific days. The words “primary physical custody” are just a trigger and there was no need for them.

[Fathers] have been seeking more time over the last dozen years. They want joint custody and to be more fully included in their children’s lives. And this is what is so strange about the Burgess opinion--it basically ignores that trend. Psychological research supports the notion that having two involved parents is critical following a divorce.

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Q: What are your main concerns with Burgess?

A: The main problem with it, is it doesn’t really take into account the needs of the child. I don’t blame Stanley Mosk personally. I have great admiration for him and he’s been on the bench for a long time. But when I first went to law school, there was a notion that when there was a divorce, one parent would just bow out because it would be too emotionally complicating for the child for him to remain in the picture.

Now that idea has been completely reversed, and yet there is a sense that the [state] Supreme Court was not up on that. We are in a very mobile society. This county in particular, because of the Navy bases, has people who are moving constantly. Corporations also move people around quite freely. So we are going to continue to run up against this law.