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Moving? Not if you want to keep custody

In the aftermath of a California ruling, divorced couples struggle with issues of relocation and what's best for the children.

June 02, 2004|Bettijane Levine | Times Staff Writer

In the bleak legal ritual of divorce, family courts oversee division of what two people had when they lived as one: the house, the cars, the tools, the stocks, the dogs -- and the kids.

Of course, children cannot be divided like community property. They usually love both parents equally. And family court has no jurisdiction over love; it is there to preside over legal aspects of its dissolution. That is why so many California family court judges say that child custody disputes are the most perplexing ones they encounter.

Now they will have an even more daunting task, one that makes an already complex issue even harder to assess. A recent decision by the California Supreme Court rules that custodial parents (80% of whom are women) cannot easily move away with their children if the other parent objects. If they move, they now may lose custody.

In its wake, the decision leaves some families putting their lives on hold and others dealing with messy -- and costly -- legal maneuverings.

Even before this ruling, move-away court cases had become more prevalent and more contentious as society became more mobile, divorce more frequent and fathers more active in their children's lives.

As California's cost of living soared and homes became more unaffordable, a large number of divorced parents with custody started to think of moving somewhere less expensive.

Many noncustodial parents, understandably, were distraught at the thought that they might no longer have the midweek overnights and weekends with their children. Nor could they afford to fly cross-state or cross-country to visit them with any frequency. The law before the April 29 decision, however, gave custodial parents loose guidelines under which they could move.

Under a 1996 state Supreme Court decision called the Marriage of Burgess, parents had the presumptive right to move unless it could be proved that the move would be "detrimental" to the children. Moving away from one parent was not generally considered a detriment by the court.

The new ruling has changed all that; a child's ongoing relationship with the noncustodial parent is now a paramount concern.

And that makes fathers like Eric Traub of Marin County extremely happy. Traub and his ex-wife, Tina, were divorced in 1995 when their daughter was 5. Tina remarried three years ago and decided to move to Costa Rica with her new husband and daughter, now 14. Traub objected.

He hired two lawyers -- one for the initial trial and then another for the appeal. The courts decided that his daughter could not be moved until she turns 15. While he is uncertain what effect the recent decision will have on his case, Traub says he will go to court again to block the move at 15.

He spends just under half of each week with his daughter, he says. He drives her to and from school, and helps her with her homework.

He says she doesn't want to move away from him, certainly not to a foreign country. But she loves her mother too and feels bad to be thwarting her desires. "No child should be asked to decide which parent she wants to give up," Traub says.

His ex-wife, who does not want her last name used, said in a phone interview that the case, which has gone on for four years, is not exactly as her ex-husband presents it.

"At the outset, I thought it would give my daughter a chance to see something different than Mill Valley," Tina says. "She was very excited about it at first. We took her to visit and she had a fabulous time. At the time we told her dad about the proposed move, he was spending two weekends a month with her. Suddenly, he wanted to spend more time with her, which has been wonderful. But now she's become afraid to discuss a move because it brings such wrath down from her father. He's convinced her she would never see him again."

Tina says the move "was never about taking her away from him. We would never do that. She would have spent all her vacations with him here in California, and he could have come to visit."

Feeling stuck

Deborah Edelman of Berkeley was married for 4 1/2 years. She and her husband had two children but the marriage was rocky from its start, she says. "When he moved us from San Francisco to Berkeley, I thought it was to make a new beginning. Then I realized his plan was to get us into a more father-friendly jurisdiction. Alameda County is known for that."

She left him in 1997. He filed for sole physical custody of the children but was awarded only two nights a week. She wanted to move away right then, but "my lawyer told me not to try because I might lose custody of the children. That was 1997 -- and he has papered me to death ever since. He litigates and litigates and re-litigates everything. He has the money to do that; I've spent everything I have. He has won increased custody time and has lowered my child support," she says.

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