A legal boost for noncustodial parents

A decision by the California Supreme Court is setting the stage for a national shift on one of the most contentious areas of divorce law. By keeping a mother from moving to Ohio with her children against the father's will, the court is sending legal tremors across the US.

Eight years ago, a California Supreme Court decision gave custodial parents - who are overwhelmingly mothers - broad powers to move as they wished, and it became the basis for many other states' laws. Now, the same court has moderated its stance, giving noncustodial parents more of a legal voice in the process, and suggesting that its initial ruling had been misapplied.

The decision comes at a time when the fathers' rights movement has been gaining momentum in state courts and legislatures. But California's ruling stands as perhaps the strongest endorsement yet of the idea that the balance of power between divorced parents has swung too far toward mothers - and that judges and lawmakers must try to stake out a new middle ground.

"It seems to me, since many states relied on [the 1996 California ruling] to decide what to do with their own relocation principles, as though there may be some rethinking of custody rules," says Margaret Brinig, a professor of family law at the University of Iowa. "You get these sorts of swings."

Legal scholars are still parsing the 6-to-1 decision to determine exactly what the court intended. The general consensus is that the language of the decision is far from revolutionary; the court itself says that it is merely fine-tuning the 1996 so-called Burgess ruling.

But the court's actions tell a different story, some analysts say. By preventing the mother from moving with her children over the objections of the father, the analysts suggest, the court is essentially overthrowing a decade of jurisprudence. In general, mothers were allowed to move for virtually any legitimate reason - ranging from a new job to a new spouse. Now, it seems, judges must pay much more heed to whether they think the move will irreparably harm the relationship between the children and the father.

"It gives the trial courts more discretion," says Joan Hollinger, a law professor at the University of California at Berkeley who filed a friend-of-the-court brief on behalf of the mother. "There's no presumption of the right of the custodial parent to change residences."

The appeals court had decided the case precisely on that presumption. It ruled that Susan Navarro had the right to move from California to Ohio with her children because her second husband had found a job there.

The six justices of the Supreme Court majority, however, said that the move could potentially destroy any relationship the children had with their father, Gary LaMusga. It agreed with the original trial court, which ruled that the mother must give up custody if she moved to Ohio.

A primary factor was the open and intense hostility between the two parents, and the concern that the mother would use the distance to estrange the father from the children. According to a psychologist's evaluation, which the court leaned on heavily, "each parent has different positive qualities to give and ... it is in the children's best interest to maintain a relationship with each of them."

It's an argument that is gaining currency across the country. Alabama recently passed a statute that says moves are not in the best interests of children of divorced parents, and the Georgia Supreme Court departed from precedent last fall when it took the children from a custodial father and gave them to the noncustodial mother when he moved to Alabama.

Ironically, the California Supreme Court seemed to have no problem with the fact that Ms. Navarro is now living in Arizona with the trial court's blessing. Here, the ruling might ultimately come down to distance - one state over is fine, but across the country is not. Nationwide, though, the California decision is being seen as perhaps the most significant victory for fathers' rights groups to date.

"It is beginning to swing back toward a more reasonable position," says Ned Holstein of Fathers and Families in Boston.

To advocates on the other side of the issue, however, the California ruling is opening the door to abuse and obstruction. Hearings take time and can cost custodial parents thousands of dollars. Moreover, advocates note that the California Supreme Court said nothing about what would happen to the relationship between the mother and her children if she were forced to relinquish custody.

Without question, it is one of the most difficult issues of contemporary family law as courts are forced to play the role of Solomon. "It is a 'cut the baby in half' sort of thing," says Nancy Dowd, a family-law expert at the University of Florida in Gainesville.

And with current divorce and mobility rates remaining high, California's decision marks a significant landmark in an evolving area of law.

"It is probably the most important part of child-custody cases today," says Sanford Katz, author of "Family Law in America." "Child custody is an area of so much judicial discretion.... So the more state law you can get on your side, the better."