| MND COMMENTARY |
Rediscovering Dad by Keith Thompson When the California Supreme Court issued a 1996 decision (Marriage of Burgess) affirming the right of divorced parents with primary custody to move away with their children, women’s rights activists cheered the decree as a historic advance for the rights of mothers. Three months ago, when the same court issued a ruling (Marriage of LaMusga) clarifying Burgess, most of the cheers came from fathers’ right advocates and divorced dads, while the feminist California Women's Law Center condemned the decision as "a huge step backwards." Eric Traub of Greenbrae, California, awaited the outcome of LaMusga (pronounced Moo-shay) believing the ruling could have a big impact on his own legal fortunes. Traub doesn’t want his 13-year-old daughter, Angelique, to move to Central America with his ex-wife. He believes Angelique would be better off staying at her school in Marin with the kids she knows. And he feels it would be best if she stayed close to him. In the wake of LaMusga, Traub feels suddenly optimistic that he and other men in his position are not on their way to becoming displaced dads. “This decision changes the focus in move-away cases from a parent-centered to a child-centered context,” says Traub, founder and teacher of a workshop series called the Kiva Journey, for 18-24 year-olds who are having difficulty making the passage from adolescence to adulthood. “Based solely on Burgess, numerous lawyers told me I had practically no chance to remain active in my daughter’s life. LaMusga gives hope to fathers who know it’s wrong to ask a child which parent she wants to give up.” In its landmark April 29 ruling, the court held that several factors – including the relationship with non-custodial parents – must be considered before children of divorced couples can be moved out of town. The decision refines the 8-year-old Burgess ruling that courts had broadly interpreted as giving custodial parents (most of whom are mothers) the “presumptive right” to relocate unless it could be shown to be detrimental to the children’s development, including their relationship with the non-custodial parent. “This area of law is not amenable to inflexible rule,” wrote Justice Carlos Moreno, the father of an adopted child. “We must permit our superior court judges … to exercise their discretion to fashion orders that best serve the interests of the children in the cases before them.” The underlying clash was between a divorced San Francisco Bay area couple, Susan Navarro and Gary LaMusga. Navarro wanted to move with her new husband and boys – Garrett and Devlen, ages 12 and 10 – to Ohio. LaMusga fought the move, arguing it would be harmful to his children because it would destroy their relationship with him. The trial court ruled in the father’s favor, ordering a change in custody of the two boys if their mother followed her new husband to Ohio. The First District Court of Appeals reversed, arguing that as long as the move-away is not done in “bad faith” (intended to prevent or discourage contact between kids and the other parent), the custodial parent has every right to move away with her children, unless the father could prove that, in the event of a move, awarding him custody would be “essential” to his children’s well-being. Declaring “essential” to be an unreasonably high standard, the Supreme Court ruled that “the likely impact of the proposed move on the non-custodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and … may be sufficient to justify a change in custody.” The justices voted 6-1 to uphold a Contra Costa County judge’s order switching primary physical custody of their two sons to LaMusga if their mother followed her new husband to Ohio. Under Burgess, a non-custodial parent had the burden of proving that the planned move of the custodial parent was intended to frustrate relations between children and the parent with whom they spend less time. LaMusga is the first high court decision to turn on the potential harm to children as a result of reduced contact with their father. Other factors that must be considered in custody change decisions include the children’s interest in stability and continuity in the present custodial arrangement; the distance of the move; the age of the kids; the children’s relationship to both parents; the ability of parents to communicate and cooperate effectively and their willingness to put the put their kids’ interest first; reasons for the proposed move; the extent to which parents are already sharing custody; and the wishes of the kids (if they’re old enough to weigh in). Leslie Shear, a southern California family law specialist in Encino who filed an amicus brief in behalf of numerous individuals and groups supporting children’s rights, says the decision “fundamentally restores to family law judges the power to consider every factor that bears on the child’s well-being in making individual determinations.” She hailed the decision as “an absolute victory for the children.” No way, says Tony Tanke, an attorney who argued for Susan Navarro. LaMusga is “the worst day for children in the history of California” because “custodial parents – most of whom are mothers, have lost the presumptive right to make decisions to better their lives and the lives of their children.” Tanke calls the decision “fundamentally lawless” by giving local judges the power to forbid custodial parents from relocating “because they were not sufficiently friendly toward an ex-spouse.” Garrett Dailey, the Oakland lawyer who represented Gary LaMusga, says “the Supreme Court probably viewed Susan Navarro’s actions more as a matter of bad faith than bad manners. The court’s independent evaluator, who followed the case for five years, was unable to name a single thing the mother had done during that time to facilitate or encourage a relationship between Gary LaMusga and his boys.” Dailey cites evidence that when LaMusga volunteered at his kids’ schoolin order to spend more time with his boys, Navarro had instructed teachers to keep track of time so she could deduct it from his court-ordered visitation. In its ruling, the court referred to a discrepancy between Susan Navarro’s words and actions: “Although the mother stated that she wanted to move to Ohio because that ‘is where she is originally from and where she has family support,’ [court psychologist Dr. Philip Stahl] suggested an additional motive: “Underneath, however, it has always appeared that [the mother] has wanted to move so that she can remove herself and the boys from the day-to-day interactions with [the father]. She has difficulty dealing with him and prefers to have as little communication with him as possible.” Dailey opened his court case with this question: “What happens when the desires of the custodial parent conflict with the child’s best interest?” He says the justices reached the reasonable conclusion that the children would be better served by not moving away from their father, their friends, their school, their environment. The case is neither a father’s rights victory nor anti-mother, Dailey says. "LaMusga does nothing to change the fact that custodial parents still have a presumptive right to move, if the move is for good reason and good faith, and if the custodial parent has fostered a good relationship between the other parent and the child." Dailey believes it comes down to the fact that LaMusga will provide a more level playing field for all such cases in the future. * * * * Eric Traub and Tina Brenes divorced in 1995 when their daughter was five. Brenes had primary custody of Angelique; Traub had unlimited visitation rights. All three moved together twice – first to southern California, then to the Bay Area. Brenes remarried three years ago and decided two months later to move to Costa Rica with her daughter (now 14) and new husband, who left Costa Rica at age 4 and now wants to retire to his country of birth. (Brenes and her attorney Kim Robinson did not respond to repeated requests to be interviewed for this story.) “Tina and I have a fundamental disagreement about the likely impact on our daughter of a move to Costa Rica,” says Traub, who spends just under half of each week with his daughter, including driving her to and from school and helping her with homework. “Living in another country can be an expanding experience, but not at this time. Especially as a child of divorce, she needs stability and continuity.” Believing litigation wouldn’t be in their daughter’s best interests, Traub offered to pay for mediation and invited his former wife to choose a mediator she trusted. Brenes declined the offer and served Traub with legal papers stating her intention to move to Costa Rica with Angelique. Both parents agreed on an independent court evaluator who did an exhaustive two-year investigation of both family units, serving as their daughter’s agent in court. The evaluator concluded that for Angelique to move at this time would be “highly detrimental” to her development. The presiding judge subsequently called both parties to chambers and recommended they not go to trial – standard procedure because an official court evaluator’s recommendations carry great weight in custody disputes. Brenes opted for a trial, filing a brief arguing that she and her daughter could enjoy a higher standard in Costa Rica, live in a safer environment and have the backing of her new husband's extended family. Brenes conceded in court that a move to Costa Rica wasn’t in her daughter’s best interests at present. She expressed confidence that Angelique will learn Spanish and adapt well to the new location, and still visit her father in California a couple of times a year. In 2003, a Contra Costa County trial court affirmed the evaluator’s opinion: Not now. Brenes could move with Angelique in two years at the soonest, if Angelique wanted to make the move. The court emphasized the importance of Angelique getting to finish with the school she’s in. Brenes filed an immediate appeal questioning the court’s competence to decide the matter, saying she had no intention to move without Angelique. The case is pending. “At the outset, I thought it would give my daughter a chance to see something different from Mill Valley,” Brenes told the Los Angeles Times. "She was very excited about it at first. We took her to visit and she had a fabulous time. At the time we told her dad about the proposed move, he was spending two weekends a month with her. Suddenly, he wanted to spend more time with her, which has been wonderful. But now she's become afraid to discuss a move because it brings such wrath down from her father. He's convinced her she would never see him again." Traub’s account differs. “Since my divorce nine years ago, I have moved three times, following Tina around California, in order to be close to my daughter and so she could have both parents nearby. I supported Tina financially so she would not have to work for six years after we split, and still maintained a balanced visitation schedule of having my daughter with me at least 40 percent of the time. Angelique has always understood the implications of the move, which is why she has always been against it. She has no reluctance to discuss it with me because I am the one who has been fighting for her voice to be heard.” Traub says he definitely wants his daughter to see the world, when the time is right to do so. “However, more importantly I want Angelique to have both loving parents in her life. Even though from a legal standpoint I opposed the move, in spirit I have never fought against anything in this matter. I have always been and will always be fighting for my daughter's voice to be heard, for her healthy development, for her strength and fulfillment as a woman.” Even if he had been willing to move to Costa Rica with Brenes and her husband, Traub notes that the court psychologist in the case concluded that such a move would be detrimental to their daughter at this time. “Angelique also feels this and only wants her needs and desires to be heard,” Traub says. “I think that listening to our children is the highest imperative of all, and that's what all of this really boils down to." * * * * Contrary to widespread media reports that the Supreme Court had reversed Burgess, the court said LaMusga was intended to reaffirm and spell out its prior ruling. Both decisions emphasized that the paramount consideration in move-away custody cases must be the child’s best interest – a phrase that appears repeatedly in both rulings. When parents can’t agree, courts invariably look to the informed opinion of expert witnesses. Many observers believe the decisive factor in Gary LaMusga getting custody of his two sons (if his ex-wife moves to Ohio) was a seminal shift of opinion among social science researchers about what’s best for kids in relocation cases – a shift that crystallized in the eight years between the two Supreme Court decisions. In Burgess, the court gave considerable weight to a brief submitted by Marin psychologist and researcher Judith Wallerstein, author of The Unexpected Legacy of Divorce, an anecdotal account of the long-term effects of divorce on some 100 children. Wallerstein’s brief emphasized the fundamental importance of maintaining the stability and continuity of “a family unit” comprising the primary custodial parent and his or her children – now known as the “primary psychological parent” doctrine. Wallerstein argued that the custodial parent is the central influence on children’s adjustment and that “frequent and continuing contact between the father and child is not a significant factor in the child’s psychological development.” When Wallerstein reprised the same basic argument in the LaMusga case, a counter-brief was filed by Richard Warshak, a clinical professor of psychology at the University of Texas Southwestern Medical Center. Insisting that Wallerstein’s brief had ignored a large body of evidence discrediting the notion that children have only one psychological parent, Warshak (along with 28 divorce researchers, authors, and psychologists) argued that it’s crucial for courts to take into consideration the non-residential parent and child as another family unit that also warrants stability and continuity. Dr. Joan Kelly of Corte Madera, a coauthor of the Warshak brief, has focused since 1970 on research in children’s adjustment to divorce, custody and access issues, divorce mediation, and applications of child development research to custody and access decision-making. Kelly believes one of the main problems with the primary psychological parent doctrine is its basis in theory rather than empirical research. “We know now that children develop attachments at a very young age to both parents, beginning as early as seven months,” says Kelly, author of Surviving the Breakup: How Children and Parents Cope with Divorce. “There’s a fairly new body of sound research that shows both parents are important to the child. The relationships may have different meanings, and each relationship is unique. The primary psychological parent theory ignores the fact that children have different parental needs depending on their ages and stage of development. The situation is fluid. Another shortcoming of the primary psychological parent theory is its general failure to distinguish between parental conflict related specifically to a planned move-away and conflict between the parents as individuals." Kelly is concerned about the drop-out rate in fathering caused in part by institutional barriers that prevent divorced fathers from having sufficient time to spend with their children. “Two weekend per month with kids is not enough. These schedules make the relationship less meaningful to both father and child.” Moving after divorce may interfere substantially with the contacts and relationships between children and their nonmoving parents, Kelly says. “When we talk about moving away with young children, depending on issues such as distance, we’re very often talking about the end of the relationship between the child and the non-custodial parent. Research on the impact of actively involved fathers post-divorce shows that when fathers continue to provide appropriate discipline to child, get involved in school projects (school), offer guidance and nurturing to kids, the kids thrive. In such situations, we don’t see any difference between the children of divorce and the children of married couples. So what’s important is a meaningful contribution to the child’s life by both parents after separation.” This obviously doesn’t apply to fathers and mothers who are uninterested, abusive, or otherwise toxic in their influence, Kelly adds. * * * * Critics of the LaMusga ruling vow to fight on for the rights of custodial parents to move in order to create a better life elsewhere for themselves and their kids. In effect, mothers are trapped, says Kim Robinson, the lawyer who represents Brenes’ appeal. “Fathers and husbands own their children and own their wives and ex-wives and control their destinies,'' Robinson told a reporter for the San Jose Mercury News. “A father who hasn't paid attention to the kids for years can say his ex-wife can't move, because if she does move it will mean he won't be able to have a relationship with the kids. It's crazy.” Traub laughs at the idea that he “owns” his ex-wife and daughter. He says “the beauty of the LaMusga ruling is that it states unequivocally that the best interests of the child have equal weight with the desires of the parents.” He gets quiet for a moment, then continues. “At the height of the legal wrangling, here’s what I said to Angelique. If you want to be here, I promise to win this battle for you. And if I lose – if I can’t keep my promise – I will pack up tent, give up my career here in the states, and I will move to Costa Rica so you can have both mom and dad with you.” Keith Thompson is a northern California independent journalist and author who frequently writes on the intersection of law, psychology, culture, and social change. Independent journalist and author Keith Thompson is a former U.S. Senate staff assistant. He is the editor of the anthology "To Be a Man" (Tarcher/Putnam, 1991). |
|
|