TWO RELATED ITEMS:

 

1. Rinaldo Del Gallo analyzes latest California case that provides for move-aways.
2. Glenn Sacks comments on the move-away case, and the history of move-aways in California.

 Please find the latest California case on move-aways and my helpful notes. 

As Justice Scalia once said, “Bad thought needs a bunk on the head.”

 To view the California Case of Brown v. Yana, go here.

 (Small irony: Massachusetts’s case on removal is Yannas.)

 Feb 02 2006 Marr. of Brown & Yana 2/2/06 SC S131030.PDF - S131030.DOC

NOTABLE QUOTES OF CASE:  “In this case, a parent who had been awarded sole legal and sole physical custody of a child after a contested custody dispute sought to relocate with her child to Nevada. The noncustodial parent opposed the relocation and sought, among other things, to have the matter addressed in an evidentiary hearing, i.e., a contested hearing with live testimony. The trial court denied the noncustodial parent’s applications to restrain the relocation and to modify custody without holding an evidentiary hearing. The Court of Appeal reversed, holding that “in a ‘move-away’ case, a parent without legal or physical custody is entitled to an evidentiary hearing.  We conclude the trial court did not err or abuse its discretion in denying relief without holding an evidentiary hearing. We therefore reverse the judgment of the Court of Appeal.

BUT OF COURSE:  Since Nichole Brown wants to move to Nevada, its time for less parenting time for dad! “Also on June 27, 2003, Brown filed an order to show cause to adjust Yana’s visitation schedule upon her move to Nevada. She stated in a supporting declaration that her husband had taken a job in Las Vegas and that the family would be residing in Green Valley, Nevada.”  And what was the Court of Appeals thinking with all this “due process” stuff and granting this dad an evidentiary hearing.

RINALDO’S NOTE: Gee.  New hubby got a new job.  I guess that’s an “exigent circumstance” warranting a severe disruption in the parent-child relationship.  Did you ever notice that in move-aways mom don’t like to talk about the standard so much?

POINT: “[Mother] also stated Cameron was extremely close to his two half siblings, and that they miss one another when apart.”

RINALDO’S NOTES: So if you want to move, get knocked up with the new hubby so you can say it would be hard for the kids to leave their “new family.”

COURT:  “Although Yana acknowledged that Brown was not seeking to relocate in bad faith, he argued that Cameron’s removal could be restrained ‘if it would prejudice the rights or the welfare of the child.’ Yana, however, disclaimed any obligation to plead or otherwise show prejudice before the setting of an evidentiary hearing—i.e., a contested hearing where he would offer oral testimony on the matter. When the court queried whether Yana ‘shouldn’t . . . tell us a little something before we launch into all of this,’ Yana reiterated the need for an independent evaluation to explore Cameron’s feelings about moving to Las Vegas.”

RINALDO’S NOTES: Courts do this a lot. When the point is so obvious that it is slapping you in the face, the court ask you to develop it.  “When the court queried whether Yana ‘shouldn’t . . . tell us a little something before we launch into all of this,’ maybe Yana should have said that they want to move my child away from me and that is obviously going to hurt the father/child relationship you moron judge who can’t seem to grasp the extremely self-evident.

COURT: He also repeated his request for an evidentiary hearing, stating he was prepared to offer “a lot of evidence about Las Vegas, Nevada, such as the high student-to-Teacher ratio; the fact that the state of Nevada has one of the highest dropout rates in junior high and high school of any state in the nation; the amount of crime over there; the volume of the people moving in and out of the community of Las Vegas, Nevada, and what the transient effect has upon people in that community.”

RINALDO’S NOTES: The problem with this legal approach is that it is logical and makes sense—a lousy tactic in family court.

COURT: “Cameron’s court-appointed attorney reported at the hearing what Cameron had told him during interviews at each parent’s home. The attorney offered his opinion, based on everything Cameron had said and done, that Cameron was ‘a conflicted young man,’ who said ‘different things at different times, based upon who he happened to be with at the time.’”

TRANSLATION: Cameron’s so-called “attorney” wasn’t really representing Cameron, and Cameron didn’t want to move away from dad, but the jerk of a step-dad was moving away with his step-siblings, and that made Cameron feel bad because he was either going to move-away from his biological father or his step-siblings.  Did you ever see the movie “Sophie’s Choice,” where a Nazi was demanding a mother say which child’s life she would like to save, her daughter’s or sons?  This attorney would call the holocaust victim “a conflicted young woman.”

COURT: “At the hearing’s conclusion, the trial court denied Yana’s requests for relief. In doing so, the court commented that a full contested hearing following psychological examinations had occurred in 1999, resulting in an award of sole legal and physical custody of Cameron to Brown.”

RINALDO’S NOTES: So they screw you by taking your kid away from you, and then, based on the fact that you don’t have joint custody, they use that to justify letting the mother move away without a hearing. Ahh. It’s good to be mom.

COURT: Given that judicial custody order, the court determined that Yana was required to assert some detriment to warrant an evidentiary hearing.

RINALDO’S NOTES:  Given that the detriment is so obvious when the child is taken from a loving father to another state, the California Supreme Court should be required to assert some type of proof that it isn’t smoking pot when it writes these opinions.  How about, “The father was required to show, some detriment to have his meaningless existence removed from the child’s life.”  Or, how about, “The judge was required to show some detriment when he was being punched in the nose, in order to complain.”

COURT (brownie points for sensitivity): “The court expressed its awareness “that children are disoriented when they move [and] it’s not comfortable for them.”

RINALDO’S NOTES:  Yes, Yes, kids are just “disoriented” or “not comfortable” when they are ripped from their father.  It’s in the proximity of eating too much birthday cake at a birthday party or a nightmare.

COURT: [The court] concluded “that level of discomfort for the child is not what detriment or substantial changed circumstances is about sufficient to change custody from mom here to dad.”

RINALDO’S NOTES: But of course.  Moving away from Dad isn’t that big a deal. What was Dad thinking?  He must have been thinking—and he was really out there on this one—that he was like—and I know this is getting weird here—but that he was like this central figure in this child’s life, because—and what was he thinking—he was the father of this child.  Man that’s a knee-slapper!

COURT: “In light of the move, however, the court found Yana entitled to a hearing on visitation and later established a modified visitation schedule.”

RINALDO’S NOTES:  Ya, that would make that visitation on Tuesday’s and Thursday from 5-7 pm a little rough, being 7 hours away and all.

COURT: “Section 7501, we observe, does not speak to the matter of evidentiary hearings in the event a noncustodial parent seeks to restrain a removal allegedly prejudicing the rights or welfare of the child.”

RINALDO’S NOTES: Correct.  The court only has evidentiary hearings when women think they are being sent “subliminal message” from David Letterman causing them to be deprived of sleep. 

COURT: “‘Section 3170 provides in relevant part: ‘(a) If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.’ In turn, section

3185 provides: ‘(a) If issues that may be resolved by agreement pursuant to

Section 3178 are not resolved by an agreement of all the parties who participate in mediation, the mediator shall inform the court in writing and the court shall set the matter for hearing on the unresolved matters.’ (Italics added.)”

RINALDO’S NOTES: OK, is the court just saying that you have to say it’s bad to move the kids away because the child will miss me and wants to be with me?

COURT: “[W]e hold an evidentiary hearing in a move-away situation should be held only if necessary.”

RINALDO’S NOTES:  Yes, fathers are so dispensable; they really should make a threshold showing that they are “necessary” and that a move-away would be “detrimental to the child.”  Yes, a move-away is not self-evidently detrimental to the child.

COURT: “Where, as here, one parent has been awarded sole legal and sole physical custody of a child, and the noncustodial parent opposes the custodial parent’s decision to relocate with the child, a trial court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.”

RINALDO’S NOTES:  This kind of reminds me of the moment when we asked a mother to work like everyone else and I had a family court judge point blank ask me “Why?”  “Please explain to me why the mother should work?”  I think the California Supreme Court would demand that a person that broke her leg on a slippery grocery floor explain her “detriment.”

COURT: “Needless to say, an evidentiary hearing serves no legitimate purpose or function where the noncustodial parent is unable to make a prima facie showing of detriment in the first instance, or has failed to identify a material but contested factual issue that should be resolved through the taking of oral testimony.”

RINALDO’S NOTES: Yes folks, dads need to make a prima facie showing that they are important in their children’s lives and a move away would be detrimental to the child.  How about a prima facie rule that (1) there are exigent circumstances necessitating the move-away and (2) considering the totality of the circumstances and governing equities, it is somehow in the best interest for the move-away custodial parent to retain custody of the child given it is they that decided to move-away from the non-custodial parent?  Nahh . . .that’s too crazy.

COURT: “As in other family law contexts, application of this procedure in move-away cases fosters the goal of judicial economy and reduces litigation costs and unnecessary distress for the parents and children involved.”

RINALDO’S NOTES:  No doubt, the first concern I have when a child is being taken away from a loving father—judicial economy.  And we don’t mom to have to go through the “unnecessary distress” of justifying her conduct.  Here’s to the California Supreme Court putting the child’s interest first.  Oh, yes, when dads go to court, they are “distressing” their children.  When moms go to court, they are “protecting their interest.”

COURT: “It also serves to protect the policy considerations underlying the changed circumstance rule, particularly in the context of a case in which the trial court has already determined that the moving parent “shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.”  (§ 3006.)

RINALDO’S NOTES: Ah, yes.  The Supreme Court of California justices really show their mettle and how they got to such exalted positions.  “Legal custody,” these genius will tell you, not only includes the right to make major decisions regarding the child (religion, medical, school choice), but the right to take your kid half way across the United States.  Contact all the family law treatise writers.  And yes, when mom moves away from the dad so that they will have less contact with him, “where are the changed circumstances.”  Could somebody explain that to me?  I just don’t see it.

COURT:  As sections 3170 and 3185 contemplate, the trial court here referred the underlying dispute to mediation and set the matter for a formal court hearing.   “At the hearing, the court made every effort to provide Yana a reasonable opportunity to make his case for modifying custody based on Brown’s proposed relocation with Cameron.”

RINALDO’S NOTES:  I am sure Yana just walked into there and said, “Moms moving away, this shouldn’t hurt the kid.”  I smell the sweet aromatic aroma of a bit of judicial bull manure.  Hey, wouldn’t it be funny if the mother Brown actually had to “make her case for modifying custody based on Brown’s proposed relocation with [the son] Cameron.” Oh, I am just being silly! A mother actually having to justify relocation.

COURT: “It reviewed the parties’ applications and supporting declarations and papers, and diligently inquired into whether or not Yana would be able to prove detriment if he were granted the full evidentiary hearing he desired. 

RINALDO’S NOTES:  Ah yes, the court should review all the papers and determine whether you get any Due Process at all.  Trenchant Constitutional analysis. 

COURT: “In this connection, the court permitted Yana to make an offer of proof, despite his failure to allege facts establishing detriment in the documents supporting his orders to show cause.”

RINALDO’S NOTES: Yep, dad just walked in, and didn’t even remotely suggest that moving away would hurt the child.  I have every confidence in the world that the California Supreme Court is describing things just as they happened.  Ok Yana.  Your kid loves you.  You’re her dad.  You are central to her life. She will be moving hundreds of miles away so contact would be sufficiently diminished.  And we have all these statistics about the importance of fathers in children’s life.  What’s your theory of the case?  I just don’t get it.  Could you develop this vague and obscure theory just a tad bit more.

COURT: “Review of the record compels us to uphold the trial court’s actions.  The record reflects that Yana’s orders to show cause and his supporting papers did not identify any detriment to Cameron that might result from the proposed move.” 

RINALDO’S NOTES: Nope. Can’t think of any detriment here.  Can you?  Hmmm.  The child is being moved away from dad greatly diminishing the relationship.  Let’s put the thinking cap on. Detriment. Need to show detriment.  Detriment.  How can I show detriment?  Nope. I am out of ideas.  Do you have any?

COURT: “At the court hearing, Yana conceded that Brown was not seeking to relocate in bad faith.”

RINALDO’S NOTES: Ahh yes.  She just thought that his presence as a father was not that important to warrant not moving away.

COURT: “Consistent with this concession, and with Brown’s proposal for a slight modification in visitation . . .”

RINALDO’S NOTES:  Wait.  Did the court just characterize a move-away as “a slight modification in visitation”?  Damn, I better start drinking less coffee.

COURT: “Consistent with this concession, and with Brown’s proposal for a slight modification in visitation, Yana made no claim that Brown sought to use the relocation to limit his contact with Cameron.”

RINALDO’S NOTES:  True.  This is a very sharp court.  Genuine belief in light in transient reasons for a move-away resulting in severely limiting the father/child relationship is a complete defense. Nor would it have any bearing on the mother’s fitness as a parent.  Even if mom is going because she genuinely believes Nevada has some pretty cool casinos—complete defense, so long as the belief is genuine.  And you smucks are out there weighing the so-called “obvious” injury to the child to the absolute necessity of the move-away.

COURT: “The record additionally shows that when the court pressed Yana for a description of the detriment he claimed, Yana merely offered to produce “a lot of evidence about Las Vegas, Nevada, such as the high student-to-teacher ratio; the fact that the state of Nevada has one of the highest dropout rates in junior high and high school of any state in the nation; the amount of crime over there; the volume of people moving in and out of the community of Las Vegas, Nevada, and what the transient effect has upon people in that community.” 

RINALDO’S NOTES: “Merely.”  I think the sentence speaks for itself.  Note that this is not part of a “prima facie showing.” 

COURT: “Like the trial court, we conclude this was insufficient to justify an evidentiary hearing given the record as a whole.”

RINALDO’S NOTES:  Yes, you heard it from the California Supreme Judicial Court: “My kid will be torn away from me, the schools completely suck where the kid will be going, and there isn’t a solid family community in Las Vegas.”  

COURT IN FOOTNOTE: “Strictly speaking, Brown and her current husband purchased a home in Green Valley, which is approximately 20 minutes away from the husband’s job in Las Vegas.  Our reasoning, however, would remain the same if the move was in fact to Las Vegas proper.”

RINALDO’S NOTES: And judging by the way you think, you would be indifferent if they were moving to the Bunny Ranch brothel itself.

COURT: WARNING, GET A BARF BAG IF YOU ARE GOING TO READ THE PROCEEDING PARAGRAPH: “At Yana’s request, the trial court also conducted an inquiry into Cameron’s preferences regarding custodial placement.  The court appointed counsel for Cameron and, at the hearing on the proposed move away, heard counsel’s report of his interviews with Cameron at each parent’s home.  Counsel noted that, during these interviews, Cameron spoke favorably of his relationship with his two half siblings and his stepfather’s involvement in his life.  He also mentioned his ties and friends in San Luis Obispo County and was naturally reluctant to break those ties.  Later, however, Cameron telephoned counsel from his father’s house, claimed he did not feel comfortable saying what his real thoughts were while at his mother’s house, and said he would really like to stay with his father.  Cameron also mentioned the existence of “problems” in his mother’s home, but that seemed to counsel “to be a paraphrase . . . of what he might have heard from someone else.” 

RINALDO’S NOTES:  You see, when the child is at mom’s house, and says he wants to move away from his dad—the child is being genuine.  When the child is at his dad’s house, and says he doesn’t want to move from dad, he is being manipulated. Hey, I have an idea, why not have an evidentiary hearing where both sides can adduce evidence as to what the child really wants?  Oh, I forgot.  This was being denied by the court.

COURT: “Counsel offered his opinion, based on everything Cameron said and did, that Cameron was ‘a conflicted young man’ who said ‘different things at different times, based upon who he happened to be with at the time.’” 

RINALDO’S NOTES:  There is a kid here.  Being asked to chose between his biological dad and his biological mother and step-siblings.  His lawyer says the whole mess is causing conflict and turmoil in the child’s life.  He doesn’t know what to say, and provides answers to please his mom when at moms, and a different one when he is with dad.  Maybe this itself shows the injury to the child caused by the move-away.  Nahhhhh.  Read on.

COURT: “After ascertaining that counsel had articulated ‘everything that Cameron wants me to know,’ the court expressed its awareness that ‘children are disoriented when they move [and] it’s not comfortable for them.’  The court concluded, however, that ‘that level of discomfort for the child is not what detriment or substantial changed circumstances is about sufficient to change custody from mom here to dad.’”

RINALDO’S NOTES: See, we just downplay the emotional turmoil the child is suffering as just being a little “disoriented” and dismiss it as “it’s not comfortable.”  Yes, it’s the same thing as a child moving with an intact fact family.  Take it from the California Supreme Court.

COURT: “We are not prepared to hold, as a matter of law, that a showing of a child’s discomfort at the prospect of moving can never suffice to establish or support a finding of detriment for purposes of the changed circumstance rule.” 

 

TRANSLATION:  We are not prepared to say every father is disposable.

COURT: “There was no issue of any bad faith on Brown’s part, and no concern expressed that she might use the relocation to limit Yana’s contact with Cameron.”

RINALDO’S NOTES:  Funny. We’re about at the end of the opinion.  Apart from saying new hubby got a new job, isn’t it about time to state why the mother and step-father could not find suitable employment in the California area?

COURT: “The only other consideration before the court was counsel’s report of Cameron’s conflicted feelings over moving, but there was nothing to indicate the move would subject Cameron to anything atypical or unusual for a move-away situation.”

RINALDO’S NOTES:  Yes—moving away from a parent is just the same as moving away with both your parents.  Take it from the California Supreme Court.

COURT: Notably, Yana made no effort to offer facts or evidence showing that the relocation would detrimentally affect Cameron’s rights or his well-being, or that it would alienate the father-son relationship. 

RINALDO’S NOTES:   Ahhhhh.  You can’t just state the obvious—the severing of continuous contact with the child would hurt the father/child relationship.  You have to actually show the child would be “alienated” if there was a move-away.  Yes, the California Supreme Court at its best.

COURT: “Because these circumstances disclosed no need for further assessment, the court acted well within its discretion to deny Yana’s request for an evidentiary hearing . . .”

But hark Dear Reader, what is lurking in a footnote . . . .

COURT, Footnote 11:  “Yana appears to complain the trial court should have allowed Cameron himself to testify.”

RINALDO’S NOTES:  Actually hear from the child?  Boy, what a concept.  Like a courts really going to have an evidentiary hearing to determine the truth to find out what’s is in the best interest of the child.  Also, you notice how much the court emphasizes the quality of the pleadings, and not its role in making sure what happens to the child is good for him.  (Ah, Finley v. Finley, a Cordoza opinion out of New York comes to mind.)

COURT FOOTNOTE 11: “Although a trial court is authorized to consider and give due weight to the wishes of a child who is of sufficient age and capacity so as to form an intelligent preference as to custody (§ 3042, subd. (a)), it need not call a child as a witness where the best interests of the child so dictate, and may instead provide alternative means of obtaining information regarding the child’s preferences (id., subd. (b)).”

RINALDO’S NOTES: Like having one of its hired henchmen tell the court, through complete hearsay evidence that cannot be examined, that the child is only “slightly discomforted” by moving away from the child.  Courts do this all the time to assure that dad loses.  The trick is to control the evidence. Don’t let the child take the stand.  Don’t allow the fathers’ psychologist to meet and evaluate the child.  Don’t worry.  Big brother will do the investigating and arguing for you.  So much for the adversarial system of justice. Hello inquisitorial form.  In Mass, they hire GAL who typically are anti-father, and they tell you what the kids really think.

COURT FOOTNOTE 11: “By appointing counsel to represent and interview Cameron and having counsel report the results of his interviews at the hearing, the court obtained the information sought regarding Cameron’s views.”

RINALDO’S NOTES:  Why can’t all law work like this.  We send out investigators to interview witnesses that makes reports to the court to side-step evidentiary hearings.  Sounds like due process to me.

COURT: “In the proceedings below, the Court of Appeal concluded that Yana, as a parent without legal or physical custody who objected to a move away, was entitled, essentially as a matter of law, to an evidentiary hearing.”

RINALDO’S NOTES:  Silly Court of Appeals.  I guess higher threshold showings of “clear and convincing evidence,” and “absolute necessity for the move” to protect the father’s parental rights is completely out of the question.  Just so you know—no court has ever ruled that there is a fundamental right to be a parent and rear your children—isn’t that the case law?

COURT: “In doing so, the appellate court relied primarily on Campos, supra, 108 Cal.App.4th 839, in which the father sought to modify a child custody and visitation order in response to the mother’s decision to move with their two sons to a town approximately two hours away by car.”

RINALDO’S NOTES:  Which, obviously, would have been extremely detrimental to the parent/child relationship.

BUT THE COURT RELIES ON A CASE THAT CAMPOS REFERS TO: In Campos, the trial court read Burgess, supra, 13 Cal.4th 25, as requiring denial of the father’s order to show cause for custody modification without an evidentiary hearing because there was no allegation of bad faith in the planned move.  (Campos, at p. 842.) 

RINALDO’S NOTES:  Phew . . . Let me wipe the sweat from my brow.  At least another court said that no bad faith in the move is a complete defense.  You can completely destroy the father/child relationship, so long as that is not your design and intent. I can hear mom’s attorneys over and over again, “No bad faith your honor.  No bad faith your honor.  Please allow this move to Eygpt from California because the mother is genuinely interested in studying the physical pyramids.”  So long as you aren’t intentionally destroying the father/child relationship, it doesn’t matter that you are completely indifferent to its needless destruction.

COURT: “Contrary to the Court of Appeal’s conclusion here, Campos does not stand for the proposition that a noncustodial parent who opposes a move away has an absolute right to an evidentiary hearing for purposes of establishing detriment to a child or determining the best interest of a child.  Reasonably viewed, Campos simply recognized the duty of the trial court to consider all relevant issues in a move-away case.”

RINALDO’S NOTES:  Such factors could include the necessity of the move; what the child really thinks by letting him speak at trial; the quality of life the child would be subjected to upon the move; actually examining the school system; and attempting to measure the damage to the child, and—this is a far out one—actually considering the parental rights of both parents.  Apparently, you can “consider all relevant issues in a move-away case” without having an evidentiary to “consider all relevant issues in a move-away case.” Just ask the California Supreme Court.

COURT: “Where, as here, a trial court in a move-away case diligently inquires into the matter of detriment in a formal court hearing, and duly considers the noncustodial parent’s claims, evidence, and offers of proof but properly finds them insufficient to establish the detriment required for a custody modification under the changed circumstance rule, the court does not err or abuse its discretion in denying custody modification without taking the further step of holding an evidentiary hearing with live testimony.”

RINALDO’S NOTES:  “Diligently inquires?”  Somebody wakes this judge up.  This is the case where there was no evidentiary hearing.  Am I reading this case right?  The whole point is that there was no diligent inquiry because you didn’t have an evidentiary hearing.  Remember, “evidentiary hearing,” that system in American jurisprudence when both sides get to adduce evidence only inhibited by the rules of evidence in pursuit of the truth?  So apparently court’s can justify not having the diligent inquiry of an evidentiary hearing by saying, “there has been diligent inquiry.” Kafka would be proud.  It reminds me of that line in Animal House: “All animals are equal. Its just that pigs are more equal.”  And I though that only Orwell could think of a line such as, “We have had diligent inquiry into the matter to determine whether you are entitled to diligent inquiry.”

COURT, FOOTNOTE 12: “We note Campos involved a situation where the parent seeking the custody change sought to offer “evidence that the move would cause detriment to the children because they were opposed to the move and because it would separate them from their extended family, friends and classmates.”  (Campos, supra, 108 Cal.App.4th at p. 843.)  

TRANSLATION: What?  Actually rely on the damage of moving away from dad?  What a foolish strategy.  And in this case, we just dismiss this actually stated fear of Cameron by dismissing it as “discomfort.”

COURT: “The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further proceedings consistent with the views expressed herein.”

RINALDO’S NOTES: Where as punishment, the father shall have to write a 1000-word essay on why move-aways are not inherently detrimental to the child, and explain why Due Process does not require evidentiary hearings to determine what is actually in the best interest of the child regarding momentous decisions such as moving away from the child.  Furthermore, the dad is to put on his car a bumper sticker that reads, “KIDS NEED THEIR DADS: But only is some remote abstract sense.”

LESSONS FOR FATHERS: When you “move on” with your life, and re-marry and have new kids, that is your choice.  Don’t expect the court to consider that when it comes to child support.  Everyone wants to move-on.  But you have duties to your ex-spouse and to your children borne out of that union. Having children brings with it responsibilities.  These responsibilities do not go away simply because you decided to remarry and “move on.”  Responsibility!  Responsibility you need to understand.  Your first obligation is to your children.  Have additional children and remarry at your peril.  Simply because you want to “move on” doesn’t absolve you of your responsibilities as a parent. By the way, can you take that food out of your later children’s mouth—your older children want to eat it. Just tell the new kid that it was not in the best interest of the child to consider his interest, because we want to teach daddy the lesson that he can’t escape his obligations by having new kids.

LESSON FOR MOTHERS:  Please disregard the previous paragraph.  Move wherever you want, so long as you can muster a half-hearted reason for the move. You need to move-on.  Your re-marriage and move-away will “inconvenience” the father/child relationship, but who is to get in between a mom and her self-actualization?  No lectures about responsibilities to the other spouse or the child here. 

WHO WROTE THE OPINION?: BAXTER, J.

WHO CONCURRED:

GEORGE, C.J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

MORENO, J.

COOPER, J. *

WHO DISSENTED: (Hear the sound of crickets chirping and otherwise quiet.)

FINAL ANALYSIS: Hopefully, this stands for the proposition that fathers’ need only to plead better in California courts.  My gut instinct though, and this is my real fear, is that father probably did plead fairly well, and the courts became highly technical to cheat this man, and his child, out of a trial.  While the holding is limited, the spirit of disdain which this case projects is troubling. 

 

ITEM 2: Glenn Sacks Analysis:

Last week the California Supreme Court ruled in favor of a move-away mom in the Brown vs. Yana relocation case. In that case a father, Anthony Yana, was trying to prevent his then 12 year-old son from being moved from San Luis Obispo, California to Las Vegas, Nevada 400 miles away.

I've covered this issue in numerous  newspaper columns and radio and TV appearances. A short history of California move-away law is as follows:

From 1996 to 2004 move-away determinations were based on the Burgess decision, in which a custodial mother was allowed to move her two children 40 miles away from their father. Burgess was disastrous for children because it was interpreted by California courts to permit moves of hundreds or thousands of miles. In some cases, courts have even allowed children to be moved out of the country, as far away as Australia, New Zealand, and Zaire.

In 2004 the California Supreme Court decided the LaMusga case in favor of the father, Gary LaMusga, who sought to prevent his ex-wife from moving his two young boys from California to Ohio. LaMusga, who is unable to follow his children because he operates a small business and is tied down by weighty child support obligations, had fought the move for eight years. In siding with the father the court explained that "the likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children."

Soon afterwards a handful of extreme feminists prevailed upon former California Senate President Pro Tem John Burton (D-San Francisco) to introduce SB 730, which would have abrogated LaMusga and given custodial parents almost unlimited move-away privileges. We organized to fight the bill, and generated thousands of calls and letters in opposition, as well as a lot of media attention. To everybody's surprise, Burton withdrew SB 730, and LaMusga was preserved.

Fortunately the new decision in Brown vs. Yana will not have the impact of Burgess or LaMusga--it is more technical and limited in scope, and the father's underwhelming legal effort and behavior hurt him. To learn more about the new ruling, see Court Rules Parents With Custody Can Move (Los Angeles Times, 2/2/06). (Rinaldo’s Notes: This is my take on the case as well.)

To learn more about California move-aways and the LaMusga case, see my co-authored column Is a Pool More Important than a Dad? (San Francisco Chronicle, 5/4/04) and read my LaMusga radio commentary here. To read a feminist view of the move-away issue, see Allred's column "Moving Matters in Custody" (Los Angeles Daily Journal, 10/3/02).

I discussed how this issue would be viewed if we switched the genders in my column California NOW Takes Stand Against Working Mothers (Sarasota Herald-Tribune, 2/23/04), and argued in favor of a current Wisconsin move-away bill in my co-authored piece AB 400 Will Help Wisconsin's Children of Divorce (Wisconsin State Journal, 12/3/05). I clashed with feminist law professor Carol Bruch, who authored the mother's brief in LaMusga, on PBS's Los Angeles affiliate  KCET last year--to watch, click here.

Sacks, Allred Debate New California Supreme Court Move-Away Decision

I debated Gloria Allred, who won the Burgess case, on KABC radio here in Los Angeles Friday evening. On Friday during the day Gloria and I were paired against each other in a KABC TV news piece. Both times Gloria was....(sigh) Gloria. She's good at what she does but at this point I've debated her on these issues so many times that I usually can guess what she's going to say next.

For example, Gloria often says that restrictions on move-aways unfairly restrict custodial moms from moving, while not restricting noncustodial fathers. I answer that in these cases both parents are free to move wherever they want--it is the children who may not be moved if a court determines that it is against their best interests.  (Rinaldo’s Notes: OK, give the kids to dad and forbid him from moving.  How men would make that trade?)

Gloria often says that restrictions on move-aways keep custodial parents "held hostage" in their neighborhoods, and that they should be able to "move on with their lives." I respond that both parents retain responsibilities to their children after divorce which are sometimes inconvenient or limiting, and ask "Would we argue that noncustodial parents' responsibility to pay child support holds them 'hostage?' Do we condone the behavior of divorced parents who decide to drop out of their children's lives or stop paying child support because they've decided to 'move on with their lives?'"

Father Denounces Move-Aways on KABC-TV

The best part of the radio or TV jousting was the appearance of Harvey LaForge, a reader of mine, on KABC-TV. LaForge's 14 year-old daughter was moved to  Hawaii against his will four years ago. He had joint legal and physical
custody of his daughter and a near equal timeshare but it didn't matter--mom's desire for her new squeeze 3,000 miles away was more important than this girl having a father.

Many fathers are hesitant to discuss their cases in the media because they fear retaliation by their ex-wives, who hold most of the cards in family court. When I called Harvey, he gathered some pictures of his daughter, jumped in his truck and drove 60 miles to meet KABC-TV at my house. Had Harvey's case been decided under Burgess instead of LaMusga, today his daughter would probably have both of her parents in her life.