Child Custody Laws Poised for Change

Child Custody Laws Poised for Change

By Wendy McElroy  – Wednesday, August 18, 2004
This 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abruptly withdrawn from consideration by the legislature early Tuesday,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.

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.

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.

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.)

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.”

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.

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.

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.

McElroy is the editor of 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.

Reprinted with permission