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Father Gets Child Custody in LaMusga Move-Away Case



 
 
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Old May 2nd 04, 09:13 PM
Dusty
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Default Father Gets Child Custody in LaMusga Move-Away Case

Father Gets Child Custody in LaMusga Move-Away Case

May 2, 2004


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by Roger F. Gay
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On April 29th the California Supreme Court issued a decision allowing a
change of custody to a father as the result of a mother's move to another
state. Despite the over-reactions of some special interest groups in recent
days, the decision merely upholds existing law. (See Closer scrutiny in
custody case moves, The Sacramento Bee, April 30.)

In 1996, the Court decided that a parent seeking to relocate after
dissolution of marriage is not required to establish that the move is
"necessary" in order to be awarded physical custody of a minor child. (In re
Marriage of Burgess 13 Cal.4th 25, 28-29) The decision was interpreted by
some as guaranteeing a woman's right to move children against the objections
of noncustodial fathers. A Contra Costa County judge saw the standard
differently and ordered a change in custody of two children to their father,
Gary LaMusga, if their mother, Susan Navarro, followed her new husband to
Ohio, where he worked and she had other relatives.

The California Court of Appeal reversed the decision, requiring that a
noncustodial parent prove that a change of custody is "essential" to prevent
detriment to the children from the planned move. The supreme court
overturned the appellate decision, affirming the change of custody, and
provided page after page of documentation showing that the appellate
decision was flawed. In fact, the Court of Appeal had on many occasions
upheld judicial discretion to consider the facts of each case and weigh all
the important factors necessary to deciding custody in move-away cases, and
the Burgess standard in no way required such a high burden of proof that the
Court of Appeal had set upon Mr. LaMusga.

What has attracted the attention of fathers' rights advocates is that this
decision hinged on the harm that would be caused to the children as the
result of reduced contact with their father. What is upsetting women's
advocacy groups is that the evidence did not show that the move was in "bad
faith." There was no evidence that the mother was moving merely to frustrate
the father's efforts to maintain contact, which is one of the circumstances
courts may consider when changing custody. Women have a basic right to move,
and it has been a common belief that mothers cannot lose custody when the
evidence suggests that a move is not merely a hostile act aimed at harming
relations between children and their father.

There had been a history of conflict between the parents that led to
difficulty in setting a reasonable visitation schedule. Mr. LaMusga had
literally worked for years to obtain what many would regard as normal
contact for a noncustodial parent, only to face the prospect that his
children would be moved thousands of miles away. Mr. LaMusga had initially
requested joint custody, while his former wife preferred sole custody and
worked to minimize contact. A psychologist testified that the children were
suffering from alienation and loyalty conflicts induced by the mother's
attitude and behavior.

The Contra Costa County Superior Court correctly considered a change in
custody merely because a move was contemplated, regardless of whether the
move itself was in "good faith," but made its decision on careful
consideration of the evidence. It determined appropriately that the children
would benefit from greater contact with their father rather than less, and
decided that a change in custody, if the mother moved, would be in the
children's best interest. The effect of less contact with the father would
be detrimental to the children's development.

Just as a move in "good faith" does not guarantee that custody will remain
unchanged, the new decision clarifying existing law does not suggest a
guarantee that custody will change merely because a custodial parent decides
to move and a noncustodial parent objects. The California Supreme Court as
well as the Court of Appeal (on many occasions) support trial court
discretion in weighing evidence and determining what custody and visitation
arrangements are best for children. The Supreme Court listed some of the
factors that courts should ordinarily consider.

"Among the factors that the court ordinarily should consider when deciding
whether to modify a custody order in light of the custodial parent's
proposal to change the residence of the child are the following: the
children's interest in stability and continuity in the custodial
arrangement; the distance of the move; the age of the children; the children
's relationship with both parents; the relationship between the parents
including, but not limited to, their ability to communicate and cooperate
effectively and their willingness to put the interests of the children above
their individual interests; the wishes of the children if they are mature
enough for such an inquiry to be appropriate; the reasons for the proposed
move; and the extent to which the parents currently are sharing custody."



 




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