CA Senate Leader to Family Courts: Don’t Consider Children’s Best Interests

In the LaMusga move-away case, the California Supreme Court is currently debating how to best preserve the bonds between children and their parents after a divorce. By contrast, Senate President Pro Tem John Burton (D-San Francisco) is trying to slip a bill through the legislature to make it easier for custodial parents to sever these bonds by slipping out of town.

Burton’s recently introduced Senate Bill 1367 will harm California children of divorce by limiting the ability of courts to determine children’s best interests when considering custodial parent move-aways. The bill instructs courts that a custodial parent’s request to change residence cannot be "frustrated by undue delay"–regardless of how far this change would move children from their noncustodial parent. Oakland family law attorney Garret C. Dailey, who represents the noncustodial parent in LaMusga, says:

"The intent of SB 1367 is simple–they do not want trial courts to be able to investigate what is in children’s best interests by conducting custody evaluations. Evaluations and proper consideration of children’s best interests take time."

SB 1367 comes at a time when California courts are on the verge of finally getting it right on protecting children of divorce. For eight years move-away determinations have been based on the Burgess decision, in which a custodial mother was allowed to move her two children 40 miles away from their father. Burgess has been disastrous for children because it has been 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 New Zealand and Zaire.

Last year the California Supreme Court moved to address the flaws in theBurgess opinion by agreeing to hear LaMusga, in which a Contra Costa County custodial mother sought to move with her two young boys first to Ohio and later to Arizona. The father fought the moves, arguing that moving would be harmful to his children because it would damage their relationship with him. He is unable to follow them because he operates a small business in Northern California and has weighty child support obligations. The court’s decision is due by early May.

While even an intact family’s move can be disruptive for children, according to a recent study published in the Journal of Family Psychology, post-divorce move-aways can be particularly damaging. The study found that among 14 variables related to a young adult’s overall well-being, move-away status was correlated to long-term, negative consequences in 11 of them.

One of the many cases which SB 1367 could impact is De Brenes v Traub. According to court documents, in Traub a divorced Contra Costa County custodial mother remarried and seeks to move to her new husband’s native country, Costa Rica, with her 13 year-old daughter. The girl’s father is contesting the move, arguing that it would be harmful to his daughter because she does not want to go, and because the move would: remove her from the special school she attends because of her learning disability; force her to move to a country and an educational system where she does not speak the native language; and damage her bonds with her father by moving several thousand miles away.

The court-ordered custody evaluator in Traub bent over backwards to be fair to the custodial mother, opining that while the move would be extremely detrimental to the child at present, it could be an "enriching" experience when the girl graduates from her special school in two years. The trial court granted the mother’s request to move but stipulated the two year delay recommended by the evaluator. The custodial mother has appealed the decision, saying the court’s action is an "undue delay."

SB 1367 will help ensure that such detrimental moves will be approved because the courts will be restrained from taking the time to properly consider children’s best interests, and precluded from delaying moves as it has done in Traub.

The bill is Burton’s second attempt to facilitate move-aways and circumvent the impending LaMusga decision. Last fall he successfully sponsored SB 156, which attempts to enshrine Burgess in California law.

Dailey believes that while SB 156 was misguided, SB 1367 could be devastating. He says:

"How can we claim our system values children while at the same time we propose a law which restrains courts from properly examining what’s in children’s best interests?"