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With a decision that sharply divides children’s rights advocates, the California Supreme Court has held that several factors-including the relationship with noncustodial parents-must be considered before children of divorced couples can be moved out of town. The 6-1 decision clarifies an eight-year-old ruling that courts had widely interpreted as holding that custodial parents had the “presumptive right” to relocate unless it would be detrimental to their children or if the move was in bad faith. On April 29, the court said that was a misinterpretation. In re the Marriage of LaMusga, No. S107355. “This area of law is not amenable to inflexible rules,” wrote Justice Carlos Moreno. “Rather, we must permit our superior court judges . . . to exercise their discretion to fashion orders that best serve the interests of the children in the cases before them.” While some children’s advocates hailed the ruling as a victory and a reaffirmation of trial judges’ broad discretion, opposing groups, such as the California Women’s Law Center, called it “a huge step backwards.” Davis, Calif., solo practitioner Tony Tanke, who represented the mother in the case, said it was, “the worst day for children in the history of California.” “California’s custodial parents-most of whom are mothers,” Tanke said in a prepared statement, “have lost the presumptive right to make decisions to better their lives and the lives of their children.” Judges can deny relocation, he added, if the moving parent wasn’t “sufficiently friendly toward an ex-spouse.” The debate now turns toward the state Legislature, where Senator John Burton, D-San Francisco, is pushing a bill aimed at preserving custodial parents’ presumptive right to move. The bill says that courts should not frustrate that right with “undue delay.” The underlying dispute was between Susan Navarro, who wanted to move with her new husband and sons, Garrett, 11, and Devlen, 9, to Ohio. Her ex-husband, Californian Gary LaMusga, fought the move, fearing that it would destroy any bond he had with the boys. The ruling sends the case back to a Contra Costa County trial court to determine whether the children, who now reside with their mother in Arizona, should be returned to California and placed in LaMusga’s custody. An intermediate appellate court had ruled in Navarro’s favor, saying that the state Supreme Court’s 1996 decision, In re Marriage of Burgess, 13 Cal.4th 25, gave custodial parents a “presumptive right” to relocate with their children as long as it was in the kids’ best interests. But Moreno rejected the “presumptive right” approach. “The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances,” he wrote. “We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child.” Among the things that should be taken into account, Moreno held, are the children’s interest in the stability and continuity of the custodial arrangement, the distance of the move, the children’s age and relationship with both parents, the parents’ relationship and the reasons for the proposed move. The trial court judge had ruled that a move would be detrimental to Garrett and Devlen and that Navarro should lose custody if she insists on leaving. “Equally important,” dissenting Justice Joyce Kennard wrote, “was the potential detriment from disrupting the custodial arrangement by transferring custody from the mother to the father.” Oakland, Calif., solo Garrett Dailey, who argued LaMusga’s case, called Thursday’s ruling “huge . . . .It will change this area of the law drastically.”

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