New California Move-Away Law Hurts Children of Divorce

October 29, 2003

Although almost completely lost in the events surrounding the recall election, California Gov. Gray Davis just signed a misguided bill that will seriously undermine the welfare of California's children of divorce.

Senate Bill 156, which was passed by the Legislature in September, grants a custodial parent the presumptive right to move children away from their noncustodial parent after a divorce. In so doing the law will allow the bonds between tens of thousands of children and their parents to be disrupted or destroyed.

Since the 1996 Burgess decision, California custodial parents, usually mothers, have been able to move children unless objecting fathers are able to demonstrate that the move would prejudice their children's rights or welfare. The lower courts have interpreted Burgess, which involved only a 40-mile move within the state, to permit moves of hundreds or thousands of miles. In some cases, these courts have even allowed children to be moved out of the country, as far away as New Zealand and Zaire.

In August of last year, the California Supreme Court voted unanimously to revisit the move-away issue by hearing the LaMusga case, in which a Contra Costa County custodial mother sought to move to Arizona with her two young boys and her new husband. The boys' father fought to block the move, arguing that it would be harmful to his children because it would damage their relationship with him. This summer the mother went ahead with the move in defiance of a court order.

The father is unable to follow his children to Arizona because he operates a business in Northern California and has stiff child support obligations. This is a common problem for noncustodial fathers, whose financial obligations often chain them to their jobs in the original locale while they are powerless to prevent their children from being moved far away from them.

By successfully sponsoring SB 156, misguided women's organizations such as the California National Organization for Women and the California Women's Law Center have largely closed the door on the move-away issue before the California Supreme Court could decide LaMusga. SB 156 amends Section 7501 of the Family Code to specifically "affirm the decision re: Marriage of Burgess ... and to declare that ruling to be the public policy and law of this state."

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.

These negative consequences include greater inner turmoil and distress from parents' divorce; more hostility in interpersonal relationships; negative feelings toward their parents; greater conflict between divorced parents; and greater problems in general life satisfaction and personal and emotional adjustment.

The study, conducted from a pool of 2,067 college students enrolled in an introductory level class at a large university, may even understate the damage of move-aways. As the survey's authors point out, many of the children most damaged by divorce and alienation from their noncustodial parents were not measured because they probably never made it as far as college.

Legislation such as SB 156 exemplifies the hypocrisy of the current public policy and discourse on fatherhood, wherein men are lectured to take responsibility for their children while at the same time their right to remain a part of their children's lives is often limited.

Gary, a Riverside, California noncustodial father of two, believes that move-aways wound children. He says:

"Before my divorce I devoted my life to my two girls. I coached their softball teams, volunteered on their school field trips, and took them to and from school every day. We were very close. After the divorce my wife quickly remarried and moved our kids out of state against my will.

"My relationship with my girls has been severely disrupted and may never be repaired. How could this be in the best interests of my children?"

Glenn Sacks