Child custody in mobile society State courts wrestle with implications of parental relocation

March 28, 1996|By Ann LoLordo | Ann LoLordo,SUN NATIONAL STAFF

Wendy Burgess moved from a small California town to take a new job. The move afforded her the possibility of career advancement. It offered her children better schools and activities that their rural hometown did not.

But Mrs. Burgess' former husband balked, and the move may cost the 36-year-old prison counselor custody of her son and daughter.

The dispute between Paul and Wendy Burgess -- now before California's highest court -- raises questions about the issue of "parental" relocation and its effect on custody.

The case has drawn the attention of women's rights advocates, domestic law experts and a nationally known psychologist who has written on children of divorce.

In a similar case in New York, the state's highest court this week gave custodial parents greater flexibility in relocating with their children.

Legal scholars say the New York ruling -- as well as the outcome in the Burgess case -- may affect other courts across the country.

"Historically, most states have looked to either of those two states for judicial guidance on issues they haven't addressed yet," said Michael Maroko, a Los Angeles lawyer representing Mrs. Burgess.

"We have a very mobile society now, especially with more women becoming more career-oriented. It's usually the mother that gets custody all the time."

Parental relocation has been an issue in custody cases for the past decade. A 50-state survey by the New York-based National Center on Women and Family Law found that the ability to relocate varies in each state.

The highest courts in 26 states have reviewed these so-called "move-away" cases, according to Janet Bowermaster, a California law school professor.

"The trend really is much more to allow the parent to move with the child, to view the custodial parent and the children as a new family unit and to try to protect that ongoing relationship there," said Ms. Bowermaster, who teaches at California Western School of Law.

Trends aside, Lynne Gold-Bikin, a family law specialist from Norristown, Pa., noted that parental relocations are determined on a case-by-case basis.

"The concept of relocation is a difficult one," said Ms. Gold-Bikin. "Judges have a lot of discretion."

Maryland has forged its own path in this area.

For years, Maryland had been among the states in which the custodial parent could move freely without unduly jeopardizing custody. But custodial parents lost that presumption after 1991.

The Court of Appeals ruled that a move by a custodial parent could prompt a re-examination of a custody arrangement.

In New York, the state's highest court Tuesday relaxed what had been considered the strictest standard for parents wishing to relocate. A move required, in part, proof of an "exceptional circumstance," such as the need to relocate for the health of a child.

But the Court of Appeals said judges should consider the best interest of the child and place more emphasis on the individual circumstances.

The court ruled in two cases, including one in which a mother moved with her son 130 miles away from the boy's father.

Brian Graifman, an attorney for the father in that case, said the court abandoned its previous standard that "provided a strong presumption for keeping divorced families together geographically."

"For them to turn around is a really significant step because it's focusing much more on the children's interest and less on the parent's right to access," said Barbara Babb, a University of Baltimore law professor who previously worked in New York.

Carol S. Bruch, a California law school professor who has written on custody issues, applauded the New York court's shift. She said the court even suggested that a noncustodial parent might consider moving to be closer to a child who has relocated.

"That's just dynamite," she said, noting that so often the burden is on the custodial parent to maintain a child's ties with the other parent.

In the California case, Paul Burgess has to drive about an hour to retrieve his children. Mr. Burgess, a corrections officer who works weekends, said the 40-mile commute diminished the time he spent with his children.

An appellate court agreed, ruling that the custodial parent has to prove the move is necessary or risk losing custody.

"There was no economic necessity for her to move," said Edward Quirk Jr., Mr. Burgess' lawyer.

In 1993, a lower court granted Mrs. Burgess' request to move from Tehachapi (pop. 6,176) to Lancaster, a town of 50,000.

She had already taken a job at a new prison there. And Lancaster offered private schools for Paul and her daughter Jessica, shopping malls, a movie theater and other recreational activities.

"As a single parent, I could better manage," said Mrs. Burgess, who was divorced in 1992.

The Burgess case will be a first for California's Supreme Court. To women's rights advocates, the lower court decision was chilling.

The advocates can recite accounts of women who have been forced to turn down jobs or chose between a new husband and their children in custody matters.

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