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Divorced Dads and Fairness

August 08, 2004|John Eisendrath

On April 29, the California Supreme Court issued a landmark ruling giving divorced fathers a fighting chance to prevent their ex-wives from moving away with their children. It was an important decision, reinterpreting the court's 1996 Burgess decision, under which custodial parents -- almost always women -- have been allowed to drag the kids off to different cities, states and even countries, even if a judge agreed that such moves were bad for the kids. The April decision articulated a single premise: Decisions such as this one must be based on the best interests of the child.

Sounds like a badly needed change, right? But already, feminist groups are outraged, gearing for a fight on the issue, and have turned to the Assembly for legislation that would make the decision moot.

I care about this issue because it happened to me.

In October 2002, a Los Angeles Superior Court judge denied my ex-wife's request to move our two young boys 200 miles north to San Luis Obispo. The judge ruled the move would be detrimental to them because it would destroy the close relationship they shared with me and that it was not in their best interest.

My ex-wife appealed. In May 2003, a three-judge appellate panel remanded the case back to the lower court. Citing Burgess and related cases, the panel concluded that detriment related to the move -- including the damage done to a child's relationship with his father -- was not a sufficient reason to prevent it. All that mattered, according to the law, was that my ex-wife spent more hours of the week with our two boys than I did, which of course was based almost solely on the fact that I work and she doesn't.

And by the way, she was not moving to San Luis Obispo to improve our children's economic prospects, to place them in better schools or to be near relatives. It was a pure lifestyle choice. She wanted to live on a farm with her new husband, and the court said that was OK.

The result was that in August 2003, the same Superior Court judge who had originally denied the move because it was bad for the boys now ordered it to occur. Visibly frustrated by what the appellate court was instructing him to do, the judge made his feelings plain: "The order I'm about to make is not in [the boys'] best interest," he said from the bench. "Let's get that real clear. I haven't changed my mind from the last time. It's simply no longer relevant."

Imagine how that feels: Being told by a family court judge that under the laws of the state of California the best interests of your children are not relevant.

At 3 p.m. on a Wednesday, my ex-wife received permission to move. By 3:30, she and my boys, ages 6 and 11, were in a car on their way to San Luis Obispo. They didn't have a chance to say goodbye to their friends at school, their half-sister or their father.

Six months later, while my appeal was pending, a stunning, last-minute stroke of extraordinary good luck changed everything. A man named Gary LaMusga took his case to the California Supreme Court and won for all of us -- fathers and mothers -- the right to make what's best for our kids relevant again.

Like me, LaMusga had won at the Superior Court and lost on appeal. Like me, his children were moved away (to Arizona, in his case) despite the Superior Court's belief that such a move was detrimental to them. Ruling in his favor, the Supreme Court wrote that "it is within the wide discretion of the Superior Court to [prevent the move] based on such detriment, if [that] is in the best interests of the children." It says a lot about how much feminists disrespect single fathers that the articulation of such a child-centered policy would cause them to howl in protest.

A month later, in June 2004, the same appellate panel that had ruled against me now ruled in my favor. It remanded my case for the third time to the lower court, and later this month my case will be heard yet again, only this time it will be decided based on the only standard I had ever asked for and the only one that should ever be applied: whether or not it is good for the children.

The last year has been brutal on my boys. They have suffered terribly since being moved from their school, friends and family. The LaMusga decision has given them and every child in this state a reprieve.

But now, feminist groups have gone to the Assembly, where legislation has already been drafted that would water down the Supreme Court's decision, once again making it possible for judges to allow children to be moved from their fathers even if it's not in their best interests.

A hearing on the bill is scheduled to be held by the Assembly Judiciary Committee on Aug. 17.

Children benefit from their relationship with both their parents, not just with their mothers. That's why the Assembly should allow LaMusga to stand as the law of the land.

John Eisendrath, a television writer, was the executive producer of "Alias," "Playmakers" and "Felicity."

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