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Child custody laws poised for change

By Wendy McElroy
web posted August 23, 2004

Last 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Senate Bill 730, which was abruptly withdrawn from consideration by the legislature early Tuesday, would have countered a recent California Supreme Court decision that affirmed the rights of non-custodial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 father's 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.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

Other related stories: (open in a new window)

  • Is a pool more important than a dad? by Jeffery M. Leving and Glenn Sacks (May 10, 2004)
    The California Supreme Court issued a ruling last week that Jeffery M. Leving and Glenn Sacks argue damages the rights of non-custodial parents
  • LaMusga move-away case: Fathers' rights showdown in CA Supreme Court by Glenn Sacks (November 24, 2003)
    One of the issues worrying men who've lost custody of their children, says Glenn Sacks, is the issue of allowing custodial mothers to move hundreds or thousands of miles away and separating children from their fathers
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