General Practice, Solo & Small Firm Division
The Relocation of Children and Custodial Parents:
Public Policy, Past and Present
Carol S. Bruch and Janet M. Bowermaster
Author’s note: This article is an outgrowth of an amici curiae brief submitted by the authors on behalf of nine California law professors to the California Supreme Court in the case of In re Marriage of Burgess, 51 Cal. Rptr. 2d 444 (Cal. 1996). See Brief of Scott Altman et al., California Supreme Court No. S046116 (Sept. 22, 1995) (Carol S. Bruch, Attorney for Amici Curiae, and Janet Bowermaster, Of Counsel). While this article was in press, the California Supreme Court rendered a 6-1 decision in In re Marriage of Burgess, 1996 Cal. LEXIS 1573 (Cal. Sup. Ct. Apr. 15, 1996). The court’s opinion shares much of the reasoning set forth in this article. A custodial parent has a presumptive right to change the children’s residence that applies in either an initial custody case or a modification action. Noting "the paramount need for continuity and stability in custodial arrangements," Justice Mosk’s majority opinion emphasizes maintaining the custodial household and grants deference to the factual custodial relationship. The legislature’s endorsement of frequent and continuing contact with both parents, he writes, "[does] not specify a preference for any particular form of ‘contact.’" Nor does it constrain the trial court’s best-interest decision or impose a burden of proof on those wishing to relocate. Specifically declining to require that trial courts "micromanage . . . everyday decisions about career and family," the opinion states that a court may not require either parent to justify a residential choice. Rather, the majority notes the "ordinary needs for both parents after a marital dissolution to secure or retain employment, pursue education or career opportunities, or reside in the same location as a new spouse or other family or friends." Term-ing it "unrealistic" to assume that former spouses will remain in the same location, the opinion holds that it is improper for a court to "exert pressure on them to do so." Although the court imposes a heavy burden on a person seeking to change custody, it directs special attention to the wishes of older children and points out that modification of contact and visitation is available where a change of custody is not.
Introduction Parents who separate or divorce are taking but one step in a series of important and often difficult life choices that affect their own futures and those of their children. Sooner or later, one or both may remarry, have new children, change jobs, change careers, or relocate. There is nothing new in this but both the frequency with which families face these changes and the attitudes we hold about them are.
Public perceptions concerning children’s welfare have changed dramatically in recent years, as have views on appropriate parental roles. In the postdivorce period, for example, both parents are now expected to contribute financially and emotionally to their children’s continuing needs.
Mental health researchers and courts have been struggling to measure these changes and to understand their relevance for custody cases. A growing body of social science literature has identified the child’s relationship with its primary caretaker as the single most important factor affecting its welfare when the child’s parents do not live together. State supreme courts, too, have recognized the importance of the child’s relationship with its custodial parent. They have, for example, generally protected the custodial household, even when the custodial parent wishes to relocate and this affects the child’s contact with the other parent. In doing so, they have often operated against a tide of restrictive lower court rulings that prohibit a child’s relocation in order to preserve or enhance existing visitation schedules. Indeed, supreme court opinions that support relocation opportunities have sometimes encountered so much resistance that the courts that rendered them have been moved to either issue further, more strongly worded opinions or, where they have had the option, to summarily reverse strings of decisions that have sought to avoid their logic.
Because there is a serious gap between popular perceptions and private realities concerning post-divorce parenting, custody orders that genuinely seek to serve children’s interests may actually disserve them. This is often true when a parent with primary responsibility for the children’s day-to-day care wishes to relocate.
As a result, custodial parents in many states are unable to make reasonable plans for themselves and their families (to accept a new job, to move closer to grandparents, to enroll in a college or graduate school program outside the local commute area, to escape hostility or violence directed at them or their children, to find affordable housing in a nearby community, to remarry someone from another community or state, or to accompany a new spouse on a job transfer) without placing the custody of their children seriously at risk. Unless they obtain the consent of their former spouses or lovers, they are routinely subjected to delays and litigational burdens—burdens greater than those imposed by the criminal law on those who wish to relocate but are subject to probation or parole supervision. Indeed, even if the parent who challenges a move is unqualified for or uninterested in obtaining custody, the custodial parent faces costly litigation. If commitments are made and kept in a timely fashion, whether to an employer, a prospective spouse, a landlord or an educational institution, a loss of custody may result.
This state of the law provides inappropriate opportunities for abuses of power by former partners and is a serious disservice to children and to their primary caretakers. It has made the job of rearing children after parental separation or divorce far more financially and emotionally burdensome than sound policy requires or should condone.
It is also inconsistent with the reality of American geographic mobility. Each year approximately one American in five changes residences. According to 1983 rates, a newborn American will probably move about 10.5 times during his or her lifetime, with approximately 3.8 of these moves transcending county boundaries. Employer-initiated job transfers are an important reason behind this mobility. Faced with the economic worries of the postdivorce period, custodial parents require flexibility in their job-seeking strategies, both because of their own employment needs and, if they have remarried, as a result of the employment demands faced by their new spouses.
This article examines these developments, highlighting the renewed relevance of family policies articulated more than a century ago. Using California custody law as an example, it addresses traditional views about custody jurisdiction and parental rights as well as the contemporary influence of joint custody doctrines and statutes favoring "frequent and continuing contact" between children and noncustodial parents. It examines these doctrines in light of the child’s best interest as articulated in case law and illuminated by mental health research. The article then compares California law to developments in sister states and finds that the national trend it identifies, which restores a custodial parent’s relocation opportunities, is in harmony with contemporary social science research and contemporary public policy goals.
Carol S. Bruch is professor of law, and chair of the doctoral program in human development at the University of California at Davis, and Janet Bowermaster is professor of law at California Western School of Law.
This article is excerpted from one that originally appeared in 30 Family Law Quarterly 245 (Summer 1996).