Child Custody Laws Poised for Change

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This
week, California became a flash point in the drive to amend child
custody laws across North America.

Senate
Bill 730, which was abruptly withdrawn from consideration by the
legislature early Tuesday, would have countered a recent California
Supreme Court decision that affirmed the rights of non-custodial
parents in “move-away” cases. Examining how California came to this
juncture is instructive because conflicts on this issue are poised
to erupt elsewhere.

“Move-aways”
– the relocation of a custodial parent sufficiently far from the
non-custodial parent as to impair or prevent the latter’s ability
to exercise regular visitation with their children – have been
called
“the most contentious and fastest-growing kind of custody
litigation” in America. Although the number of “move-aways” nationwide
is unknown, divorce is often a cause of relocation. In California
– notorious for its transient population – “move-aways” have been
particularly contentious.

On
April 29, the state’s Supreme Court ruled on LaMusga,
a case in which a custodial mother wished to relocate to Ohio with
her two young boys. The psychologist who evaluated the children
testified that they benefited from contact with both parents. The
father argued that the move would de facto terminate his regular
contact and harm the children. The court agreed and ruled “primary
physical custody … would be transferred from their mother to their
father if their mother moved.”

Up
until then, California’s policy on “move-aways” had been based largely
on an earlier Supreme Court ruling Burgess
(1996), which found that a custodial parent had a presumptive right
to relocate children. To block relocation, the protesting parent
had to successfully demonstrate “a removal … would prejudice the
rights or welfare of the child.”

In
Burgess, the mother had relocated only 40 minutes away but
lower courts interpreted the decision to permit moves of thousands
of miles, including outside of the country. Courts also required
the non-custodial parent to demonstrate his presence was “essential”
to his children’s well being.

Through
LaMusga, the Supreme Court signaled its disagreement with
the lower courts’ interpretation of Burgess. It also found
that the “essential” standard placed an unreasonably high burden
on the non-custodial parent. The Supreme Court stated that the disruption
of contact with a responsible father constituted a “harm” to children.

The
Supreme Court may have been influenced by Sanford L. Braver, who
was an amicus curiae in LaMusga – that is, a party
who is not involved in litigation but advises the court on a matter
affecting the case. A study by Braver and his associates at Arizona
State University, “Relocation
of Children After Divorce and Children’s Best Interests,”
makes
a strong argument against move-aways. The first direct study on
the effect of “move-aways” upon children, it appeared in the June
2003 American Psychological Association’s Journal of Family Psychology
and had an immediate impact on the custody debate.

The
study concluded: “On most child outcomes, the ones whose parents
moved are significantly disadvantaged. This suggests courts should
give greater weight to the child’s separate interests in deciding
such cases.” (Braver’s findings contrast with those of author Judith
Wallerstein, who acted as an amicus curiae in Burgess.
Wallerstein argued that “move-aways” are generally in a child’s
interest because what is good for the custodial parent is good for
the child.)

Braver’s
study has been championed by those who believe fathers are systematically
devalued by our society. It has also been attacked by feminist groups
who advocate the presumptive right of mothers to custody and relocation.
NOW’s position can be judged by the title of its analysis of a Missouri
“move-away” law: “Relocation
Laws Keep Women in Their Place.”

A
backlash will likely greet any shift toward fathers’ rights in “move-aways,”
and looking at California is once again instructive, especially
concerning the tactics used.

Father’s
rights advocates howled “Foul Play!” over the now-withdrawn SB 730,
which was introduced in 2003. Originally titled
“An act to amend Sections 1773 and 1773.5 of the Labor Code relating
to prevailing wages,” the bill dealt with per diem wage issues.
It was amended
twice
in 2003 to fine-tune the code changes.

Then,
on Aug. 9, 2004 – approximately eight days before the bill was
to be presented to the legislature at the rushed end of its session
– SB 730 was entirely rewritten, though not renumbered, to
become
“An act to amend Section 7501 of the Family Code, relating
to child custody.” It sought to counter, if not outright reverse,
LaMusga.

SB
730 had the appearance of legislation being sneaked in through the
back door. If so, it didn’t work. In conjunction with father’s rights
advocates, the Alliance for Children
Concerned About Move-Aways
co-ordinated loud opposition.

According
to the conservative estimate provided by radio host and men’s rights
spokesman Glenn Sacks, more than 2,000 calls, letters and faxes
were received in opposition to the bill.

“Organizations
of family law attorneys and judges have also spoken out against
SB 730,” Sacks said.

Feminist
groups pushed for passage. A war to change custody laws has clearly
been declared, not only in California but also across North America.
Hopefully, everyone will remember that the battle is not about ideology
but what is best for children.

August
19, 2004

Wendy
McElroy is author of The
Reasonable Woman
.
See more of her work at ifeminists.com
and at her personal website.

Wendy
McElroy Archives

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