On April 29th the California Supreme Court issued a decision allowing a change of custody to a father as the result of a mother's move to another state. Despite the over-reactions of some special interest groups in recent days, the decision merely upholds existing law. (See Closer scrutiny in custody case moves, The Sacramento Bee, April 30.)

In 1996, the Court decided that a parent seeking to relocate after dissolution of marriage is not required to establish that the move is “necessary” in order to be awarded physical custody of a minor child. (In re Marriage of Burgess 13 Cal.4th 25, 28-29) The decision was interpreted by some as guaranteeing a woman's right to move children against the objections of noncustodial fathers. A Contra Costa County judge saw the standard differently and ordered a change in custody of two children to their father, Gary LaMusga, if their mother, Susan Navarro, followed her new husband to Ohio, where he worked and she had other relatives.

The California Court of Appeal reversed the decision, requiring that a noncustodial parent prove that a change of custody is "essential" to prevent detriment to the children from the planned move. The supreme court overturned the appellate decision, affirming the change of custody, and provided page after page of documentation showing that the appellate decision was flawed. In fact, the Court of Appeal had on many occasions upheld judicial discretion to consider the facts of each case and weigh all the important factors necessary to deciding custody in move-away cases, and the Burgess standard in no way required such a high burden of proof that the Court of Appeal had set upon Mr. LaMusga.

What has attracted the attention of fathers' rights advocates is that this decision hinged on the harm that would be caused to the children as the result of reduced contact with their father. What is upsetting women's advocacy groups is that the evidence did not show that the move was in "bad faith." There was no evidence that the mother was moving merely to frustrate the father's efforts to maintain contact, which is one of the circumstances courts may consider when changing custody. Women have a basic right to move, and it has been a common belief that mothers cannot lose custody when the evidence suggests that a move is not merely a hostile act aimed at harming relations between children and their father.

There had been a history of conflict between the parents that led to difficulty in setting a reasonable visitation schedule. Mr. LaMusga had literally worked for years to obtain what many would regard as normal contact for a noncustodial parent, only to face the prospect that his children would be moved thousands of miles away. Mr. LaMusga had initially requested joint custody, while his former wife preferred sole custody and worked to minimize contact. A psychologist testified that the children were suffering from alienation and loyalty conflicts induced by the mother's attitude and behavior.

The Contra Costa County Superior Court correctly considered a change in custody merely because a move was contemplated, regardless of whether the move itself was in "good faith," but made its decision on careful consideration of the evidence. It determined appropriately that the children would benefit from greater contact with their father rather than less, and decided that a change in custody, if the mother moved, would be in the children's best interest. The effect of less contact with the father would be detrimental to the children's development.

Just as a move in "good faith" does not guarantee that custody will remain unchanged, the new decision clarifying existing law does not suggest a guarantee that custody will change merely because a custodial parent decides to move and a noncustodial parent objects. The California Supreme Court as well as the Court of Appeal (on many occasions) support trial court discretion in weighing evidence and determining what custody and visitation arrangements are best for children. The Supreme Court listed some of the factors that courts should ordinarily consider.

"Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are the following: the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody."

Roger F. Gay