You fall in love. You get married. You have a child. You get a divorce. You become the custodial parent, the parent who stays home when the child falls ill, who helps with homework, who cooks and cleans and plays. You are--because this is just the way it is--the primary parent.
You make the child available, per the legal agreement, for visits with your ex-spouse. Sometimes your ex-spouse doesn't show up. The court doesn't care about that. All the court cares about is that the child is made available . Whether the other parent shows up is irrelevant to the court.
Not a happy ending, but your life goes on.
You meet someone new. You fall in love. You get married. Your new spouse, a military officer, gets transferred to a different base.
Or you don't meet someone new, but you receive a long-sought promotion, requiring a move to a new city.
Or you are accepted to a doctoral program in a different state.
You ask the court to change the custody arrangement. Instead of every other weekend and one night a week, you suggest, your kid can live with the other parent for 10 weeks each summer and on holidays. Your ex objects. \o7 Rip my child away from me?\f7
Never mind that if the non-custodial parent should choose to move to a new city--for any reason whatsoever--the court neither cares nor objects.
Finally, after too much money is spent by both sides on lawyers' fees and psychological evaluations, the judge says you are free to accompany your new spouse, or take your promotion or pursue your education.
But there's a hitch.
You can't take your child.
Not a happy ending and your life comes to a screeching halt.
These scenarios describe what is called in family law circles "the move-away problem." Usually--but not always--the custodial parent is the mother.
Painful anecdotes are legion. Many are told in letters to Dorothy Jonas, who has worked on legislation that would allow custodial parents the presumption of being able to move with their children for legitimate (read: non-punitive) reasons.
A state Senate bill died last year, and the outlook is bleak. But Jonas, a co-founder of the Coalition for Family Equity in Los Angeles, isn't giving up. This time, the coalition will try for a bill that calls for a study.
"Whenever we come before legislative bodies," Jonas says, "they say, 'What are your statistics? How many cases?' You can't build the statistics except from the appellate level, but most mothers are too poor to get to that level. So we would look at lower-court rulings.
"What we have, in the meantime, are hundreds of anecdotes. Legislators don't like anecdotes, but that is what in large part women's lives are."
There's the mother of two in San Diego, whose ex-husband asked her to postpone entrance to graduate school in another state for one year to give him time to bond with his children. At year's end he took her to court to prevent her from leaving because he and the children had bonded.
She is still in San Diego, having abandoned her dreams of a doctorate.
And there's the mother of one in Ventura who was laid off when two banks merged, but was offered a job with the new company in Sacramento, along with the opportunity to keep her seniority and benefits. But a judge refused to let her move with her 4-year-old son, telling her that her work was only a "scut job" and that she should "pick up another." His ruling was reversed on appeal.
Without any guiding legislation, California court rulings have been wildly inconsistent. Judges, interested in preserving their discretion in individual cases, do not perceive this as a problem and opposed last year's move-away bill.
If they could see beyond the combative parents sitting in their courtrooms to the larger picture, they might change their minds.
Janet Bowermaster, a professor at California Western School of Law in San Diego, can describe the big picture. She has studied 200 move-away cases and has found that mothers are usually penalized: "Denying permission to relocate reinforces the economic disparity created during the marriage when the primary caretaker performed the bulk of uncompensated child care and the secondary caretaker enjoyed unfettered market opportunities."
These cases are difficult, she says, but not intractable. Instead of using some impossibly Solomonic way of treating divorced parents in custody disputes, courts need only recognize that the best interests of children are often inextricable from the \o7 best interests of the custodial parent. \f7 (How, for instance, does it serve the child's best interest to tell the custodial parent to go ahead and move, but without the child?)
The "frequent and continuing" contact to which a child is entitled with the non-custodial parent can certainly be accomplished with letters, phone calls and extended visits.