Though the California Supreme Court's 1996 Burgess decision only involved a 40 mile move within the same county, it has been interpreted by California lower courts as granting custodial parents a presumptive and almost unfettered right to move children out of state or, in some cases, out of the country. As a result, damaging and unnecessary moves have become common

For example, in the LaMusga move-away case decided by the California Supreme Court in 2004, the mother sought to move her two boys from the Bay Area to Ohio because she wanted to attend a law school there, even though there are eight law schools in the Bay Area. When the courts blocked this, she moved to Arizona because, she claimed, her new husband needed work. His job? Selling cars.

Part of the problem is that current policies provide strong financial incentives for moving. California has a high child support guideline, a high cost of living, and high wages. Thus custodial parents can often live better by moving to states which have a lower cost of living, because they will still collect child support awards based on California wages and support guidelines. This is a terrible injustice to noncustodial parents, who often must stay behind to work to pay child support for children who have been moved out of their lives. Case law is stacked so heavily in favor of custodial parents that they often use threats of relocation as a way to extort unrelated concessions from noncustodial parents.

The California Supreme Court addressed the problem in LaMusga, affirming custodial parents' presumptive right to move but also making it clear that courts can prevent children from being moved when it is detrimental to their interests. Among the factors deemed important were the relationship between the child and the nonmoving parent, usually the father.

Fatherlessness is tightly correlated with rates of teen drug abuse, juvenile crime, and school dropouts. Yet in Brown vs. Yana the courts allowed Cameron Yana to be taken away from his father just as his teen years were beginning, substantially increasing the likelihood that he would fall victim to these pathologies.

The trial court decided that it had not heard prima facie evidence of the move's detriment and barred an evidentiary hearing. Had Yana been allowed one, he might well have been able to block the move. In overturning the trial court's decision, the Second District Court of Appeal wrote:

"Cameron's attorney told the trial court that Cameron spoke about his ties to San Luis Obispo County, his reluctance to break those ties and his desire to live with his father. The wishes expressed by 'mature enough' children are one of the factors cited by LaMusga that the court should consider...More importantly, Cameron told his attorney that there are problems in his mother's home. It may well be that...if any problems exist, they are insignificant. But without an evidentiary hearing the court is simply left to speculate...the gravity...[of the] decision mandates that the parties have a full opportunity to present, and the trial court have a full opportunity to consider, the relevant evidence."

After the move the boy rebelled against his mother, at one point refusing to board a plane to go back to Las Vegas after a visit with his father. The mother, who had moved to Las Vegas because her new husband was offered a new job there, has now allowed the boy to live with his dad. Cameron told the Santa Maria Times that the new Supreme Court decision is "bad for other kids like me who don't want to move...It's hard to leave your friends. And my dad missed all but one of my football games when I lived in Las Vegas."

The underlying problem is that in California the legal presumption on relocations points in the wrong direction. If a parent wants to move a child far away, he or she should bear the burden of showing that the move is not detrimental to the child. In this way many frivolous, selfish, or vindictive moves would be restricted, while still allowing for legitimate ones, such as in cases of abuse, dire economic need or when noncustodial parents show little interest in their children.

Brown vs. Yana is not an outrageous ruling, and Yana had harmed his case with slipshod legal work and erratic behavior. The decision is, however, sadly illustrative of a common mentality in family law which places a custodial parent's convenience above a child's love for his mother and father.

This article first appeared in the Daily Breeze [Los Angeles] (2/9/06).

Jeffery M. Leving is one of America's most prominent family law attorneys. He is the author of the book Fathers' Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. His website is www.dadsrights.com.

Glenn Sacks' columns on men's and fathers' issues have appeared in dozens of America's largest newspapers. Glenn can be reached via his website at www.GlennSacks.com