By Glen L. Rabenn

The recent case of the "Harvard Mom" in Long Beach, California is just the latest in a stream of emotionally charged "move-away" cases that have been coming before family law judges throughout the state. If the national interest this case has generated is any indication, the legal system can expect to see a parade of these battling parents in the future.

Over the vigorous objections of the father, the judge in the Long Beach case permitted the mother to take her 10-month-old child back to Harvard, where she has received a scholarship. In fact, divorcing parents have been waging similar battles since the parents in that case were in grade school.

This controversy has its origins in a line of appeals cases that stretches back more than fifty years to a 1942 case in which the father was trying to regain custody of the child from his ex-wife. In that decision, the appellate court said that an existing child custody order could be changed only if it is "essential or expedient for the welfare of the child that there be a change." In 1979, the California State Supreme Court stated that a child's custody could be changed only if the parent requesting the change could make a "persuasive showing of substantially changed circumstances affecting the child." Over the last ten years, this rule has been used by courts to tell custodial parents that they could not move the children to other cities. In 1986, a Napa County working mother, who got a new job in San Francisco, was told that she could not take her 13 and 10 year old daughters with her. Six years later, another appellate court ruled that a father, who had physical custody of his three children three nights each week, had the right to demand a mental health evaluation of the parents and the children before the mother was permitted to move the children from Santa Barbara.

Several other appellate cases echoed the stringent rule that the move-away parent could not pick up and leave with the kids, simply because she wanted to. And it was not enough that the custodial parent had a good reason for the move, such as a new job or the desire to live with a new spouse.

Last year, the California State Supreme Court's Burgess case effectively nullified all of these lower court rulings. In doing so, the court has made it much easier for move-away parents to follow though with their plans. In Burgess, the mother wanted to move with the couple's two children from their hometown of Tehachepi to Lancaster, which was 40 minutes away. After winning in the Superior Court and loosing in the District Court of Appeal, the wife was able to convince the California State Supreme Court that the trial judge made the right decision. The Court held that a custodial parent who is requesting to move does not have to prove anything more than it would be in the children's best interests. No longer does the moving parent have to show that there is some urgent need for the kids to get into a new environment or that there is a dire circumstance that justifies relocating to another city. To hold otherwise, the Court said, would require it to ignore the reality that people often relocate after they get divorced.

Now, the only restriction on the custodial parent's right to move is the requirement that the move must not be based on a "bad" reason, such as to frustrate the non-custodial parent's time with the child.

What is a divorcing parent to do? One of the lessons the Burgess case teaches is that a parent in one of these cases should do everything possible, short of violating the law, to maximize his or her time with the children. Burgess, which was limited to cases where the children have been living primarily with one parent, did not tell us what is to be done if the parents are actually sharing custody of their children. However, because the Court was so focused on the right of the custodial parent to decide where the children should live, it is logical to assume that the move-away parent in a shared custody arrangement will not be given an automatic green light.

Unlike the typical child custody dispute, in which the parents fight over how much time they will each have the children, these cases have an unmistakable "all or nothing" quality to them. The move-away parent views the move as a doorway to her post-divorce future. The stay-behind parent, on the other hand, sees the move as a threat his parenthood. With so much at stake, there is a strong possibility that, instead of clarifying the controversy, the Burgess case will actually encourage parents to position themselves for future custody battles like the one in Long Beach.

Posted on Sunday, February 25, 2007 at 01:14PM by Registered CommenterSite Administrator in | Comments Off

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