• 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    Bill 730, which was abruptly withdrawn from consideration by the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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