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Caught in the Middle : Custody: The newest wrinkle in divorce cases is that parents wanting to move out of the area might have to leave the kids behind.

February 25, 1993|AURORA MACKEY | TIMES STAFF WRITER

When theater audiences first saw the movie "Kramer vs. Kramer" in 1979, they had little way of knowing that what they were seeing actually was a prescience of a legal trend that would sweep the nation in the years to come: After a divorce, a father argued in court that he was just as capable of having custody of the couple's son as his ex-wife.

If that same movie were made today, however, chances are good it would deal with an even thornier custody issue.

Audiences might well see a divorced parent asking a family law court for permission to move to a different city or state--only to find that to do so might mean leaving the kids behind.

That already has been the central theme of two real-life cases--one in Ventura in 1990 and the other in Santa Barbara last year--that attorneys say undoubtedly will have an impact on similar court battles around the state.

"In my experience, and in the experience of many other family law attorneys I know, there are a lot more of these kinds of cases," said West Los Angeles family law attorney Forrest Mosten.

"And the trend now is against allowing the move away to occur, unless there is strong evidence of why it is in the children's best interest," Mosten added. "It doesn't even matter anymore if it's sole or joint custody. You can't just up and leave anymore."

Mosten isn't the only attorney who has seen an increase in what commonly are being called "move-away custody cases."

"This used to be rare," said Betsy Apple, staff attorney with the pro bono legal services division of the San Francisco Bar Assn.

"Bear in mind, too, that our clients here are indigents and they are not as mobile. But even among very poor people, we're seeing that it is happening more."

Apple said court requests to relocate are made for a variety of reasons.

A parent--often the one with primary physical custody--may wish to be nearer to other family members for increased emotional support. One parent may be trying to escape an abusive situation with an ex-spouse. Or the parent may be attempting to "cut the other parent out" by moving away.

But according to several attorneys and judges statewide, none of those reasons is believed to account for the flood of recent court cases--many of them reaching the appellate level--that deal with divorced parents wishing to alter their custody agreements.

"There are layoffs going on all over the state, businesses bailing out of the state because of environmental rules, and there's this mass exodus that's making this whole problem appear," Camarillo family law attorney Edward Matisoff said.

Like many attorneys contacted, Matisoff said he first began seeing more of the move-away cases as the economy worsened. Although Ventura County's jobless rate is not the worst in the state, last year it had shot well above the national average to a 10-year high of 10.2% in November.

At year's end, a report issued by the state Employment Development Department found that the county had at least 5,100 fewer jobs than the year before. Particularly affected were the construction industry and agriculture, which each lost 1,000 jobs; government--especially military positions--with 1,100 lost jobs; the retail trade, with 600 fewer positions, and the manufacturing sector with 500 fewer jobs.

"People need to find a place to work and they need to go where the jobs are," Matisoff said. "But a lot of times, that's flying in the face of custody orders."

Legally forcing a parent to choose between a job and a child may sound cold-hearted on the surface. But Ventura County Judge William Peck, who until last month had worked for three years in the family law division, said the courts have been put between the proverbial rock and a hard place.

On one side is an economic crisis that has had a dramatic impact on many parents' ability to earn a living.

On the other, he said, is the obligation to uphold the 1979 California Civil Code that states: "It is the public policy of this state to assure minor children a frequent and continuing contact with both parents after the parents have separated or dissolved their marriage. . . ."

"Certainly the economy in California has plummeted, far worse than the rest of the nation, and a lot of the cases are based on that," Peck said.

"But a child who has the support and love of both parents also is far more likely to grow up into a happy adult. And the definition of a move-away is that (the child) will spend less time with both parents."

Simi Valley family law attorney William R. Robinson said an important trend in the courts has been to consider the impact the move would have on the non-moving parent. Until as recently as a few years ago, he added, parents with sole custody could pretty much travel where they pleased.

"In other words, whether it is mom or dad who wants to move, (the courts) want to analyze what their relationship has been," Robinson said.

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