In the LaMusga move-away case, the California Supreme
Court is currently debating how to best preserve the bonds
between children and their parents after a divorce. By
contrast, Senate President Pro Tem John Burton (D-San
Francisco) is trying to slip a bill through the legislature
to make it easier for custodial parents to sever these bonds
by slipping out of town.
Burton's recently introduced
Senate Bill 1367 will harm California children of divorce by
limiting the ability of courts to determine children's best
interests when considering custodial parent move-aways. The
bill instructs courts that a custodial parent's request to
change residence cannot be "frustrated by undue
delay"--regardless of how far this change would move
children from their noncustodial parent. Oakland family law
attorney Garret C. Dailey, who represents the noncustodial
parent in LaMusga, says:
"The intent of SB 1367 is simple--they do not want trial
courts to be able to investigate what is in children's best
interests by conducting custody evaluations. Evaluations and
proper consideration of children's best interests take
time."
SB 1367 comes at a time when California courts are on the
verge of finally getting it right on protecting children of
divorce. For eight years move-away determinations have been
based on the Burgess decision, in which a custodial
mother was allowed to move her two children 40 miles away
from their father. Burgess has been disastrous for
children because it has been interpreted by California
courts to permit moves of hundreds or thousands of miles. In
some cases, courts have even allowed children to be moved
out of the country, as far away as New Zealand and Zaire.
Last year the California Supreme Court moved to address the
flaws in the Burgess opinion by agreeing to hear
LaMusga, in which a Contra Costa County custodial mother
sought to move with her two young boys first to Ohio and
later to Arizona. The father fought the moves, arguing that
moving would be harmful to his children because it would
damage their relationship with him. He is unable to follow
them because he operates a small business in Northern
California and has weighty child support obligations. The
court's decision is due by early May.
While even an intact family's move can be disruptive for
children, according to a recent study published in the
Journal of Family Psychology, post-divorce move-aways
can be particularly damaging. The study found that among 14
variables related to a young adult's overall well-being,
move-away status was correlated to long-term, negative
consequences in 11 of them.
One of the many cases which SB 1367 could impact is De
Brenes v Traub. According to
court documents, in Traub a divorced Contra Costa
County custodial mother remarried and seeks to move to her
new husband's native country, Costa Rica, with her 13
year-old daughter. The girl's father is contesting the move,
arguing that it would be harmful to his daughter because she
does not want to go, and because the move would: remove her
from the special school she attends because of her learning
disability; force her to move to a country and an
educational system where she does not speak the native
language; and damage her bonds with her father by moving
several thousand miles away.
The court-ordered custody evaluator in Traub bent
over backwards to be fair to the custodial mother, opining
that while the move would be extremely detrimental to the
child at present, it could be an "enriching" experience when
the girl graduates from her special school in two years. The
trial court granted the mother's request to move but
stipulated the two year delay recommended by the evaluator.
The custodial mother has appealed the decision, saying the
court's action is an "undue delay."
SB 1367 will help ensure that such detrimental moves will be
approved because the courts will be restrained from taking
the time to properly consider children's best interests, and
precluded from delaying moves as it has done in Traub.
The bill is Burton's second
attempt to facilitate move-aways and circumvent the
impending LaMusga decision. Last fall he successfully
sponsored SB 156, which attempts to enshrine Burgess
in California law.
Dailey believes that while SB 156 was misguided, SB 1367
could be devastating. He says:
"How can we claim our system values children while at the
same time we propose a law which restrains courts from
properly examining what's in children's best interests?"
This column first appeared in the
Daily Breeze [Los Angeles] (4/6/04).
Glenn Sacks is a radio talk show host and
columnist on men's and fathers' issues.
His nationally syndicated radio show,
His Side with Glenn Sacks,
can be heard every Sunday in Los Angeles and Seattle.
