What do you do when two parents have divorced and the one with primary custody wants to move?  That is always a difficult issue and for a number of years I have counseled a patient whose children were in effect, taken away from him when his ex-wife moved out of state.  He took it extremely hard and did not feel it was in the best interests of his children to no longer have him in their life on a regular basis and furthermore he thought his ex-wife was doing this at least partially for spite. 


Well, the case law has recently changed.  This area of the law had been governed by what is referred to as the Burgess Case in which the mother, who had custody, wanted to move with her children a mere 40 miles away for a better job.  The father did not want this to happen, however, the mother was aided by a brief filed by well known psychologist and researcher Judith Wallerstein.  Ms. Wallerstein=s brief was filed on behalf of the mother indicating that her research showed that a child is better off moving away with the custodial parent rather than having the custodial parent forced to stay in town and have the parents fight with each other.  Ms. Wallerstein believes that the child=s relationship with his primary custodial parent is absolutely critical.  Her brief in this case lead to courts across the country strongly favoring the custodial parent and if the mother wanted to move then she could take the child or children with her.  Since the majority of the time, the mother is the custodial parent, women and women=s rights groups tended to really like this decision and men and men=s rights groups did not.  The men claimed that this decision allowed mothers to basically take the father out the life of the child or children.

Well, it is now time for the fathers to step up and be counted.  The new key decision is called the Navarro Case.  In this matter Susan Navarro, the custodial mother, moved with her children from California to Arizona so that she could live with her new husband.  The father demanded that she give him custody or alternatively return from Arizona.  Ms. Wallerstein again filed a brief on behalf of the mother, however, this case saw dueling psychologists as a team of psychologists filed a brief on behalf of the father indicating that it was better for children to have both parents play significant roles in the lives of the children.  This brief attacked the research of Ms. Wallerstein indicating that her brief and research represented the minority view, not the majority view.  This group of psychologists was lead by Richard Warshak who cited a large body of research including a 2003 study by a psychologist at Arizona State University in which the psychologist, Sanford Braver studied 602 two college students and found significant and lasting ill effects among children who had moved away with the parent when they were young, compared to students whose divorced parents remained in the same area.  Relying on this research the trial court forced Ms. Navarro to return to California if she wanted to keep her children.  Ms. Navarro then appealed to the California State Supreme Court and by a 6 to 1 decision, the court held that Ms. Navarro had to stay in California if she wanted to maintain custody.  The new test for the trial courts to consider is Athe likely impact of the proposed move on the non-custodial parent=s relationship with the children.@


Now, the focus is no longer on the custodial parent and where that parent wants to live or work and the focus is, where I think it always should have been, on the effect the proposed move would have on the child.  Isn=t that where the focus ought to be?  It=s got to be about the children.  If the parents couldn=t get along and decided to divorce so be it, however, the welfare of the child must remain paramount.  As the State Supreme Court indicates, the trial court judge has to decide whether or not he should permit a move or whether or he should consider taking custody away from the parent that has it and transferring it to the parent who wants his children to remain in the area.


Just like lawyers, psychologists don=t always agree on significant issues.  This is a big one and the psychologists on both sides are well respected.  In a case like this, the court needed to take a look at the studies that have been done and the trial court did so and the State Supreme Court do so as well.


I strongly support this decision and wish it had come sooner.  If it had, my patient would not have had to suffer the loss of his children for several years which in no way was in the best interests of his children.