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With a decision that sharply divides children’s rights advocates, the California Supreme Court on Thursday held that several factors — including the relationship with non-custodial parents — must be considered before children of divorced couples can be moved out of town. The court’s 6-1 decision clarifies an 8-year-old ruling which 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. Thursday’s ruling said that was a misinterpretation. “This area of law is not amenable to inflexible rules,” wrote Justice Carlos Moreno, who is the father of an adopted child. “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 for kids and a reaffirmation of trial court 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, went as far as calling Thursday “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, Tanke added, if the moving parent wasn’t “sufficiently friendly toward an ex-spouse.” The debate now turns toward the state Legislature, where Sen. John Burton, D-San Francisco, is pushing a bill aimed at preserving custodial parents’ presumptive right to move. The bill, amended Wednesday, 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 two boys — Garrett and Devlen, ages 11 and 9 — to Ohio. Her ex-husband, Gary LaMusga of Alamo, opposed the move for fear that it would destroy any bond he had with his children. Thursday’s ruling sends the case back to Contra Costa County Superior Court to determine whether the two children, who now reside with their mother in Arizona, should be returned to California and placed in LaMusga’s custody. San Francisco’s 1st District Court of Appeal ruled in Navarro’s favor, saying that the Supreme Court’s 1996 decision, In re Marriage of Burgess, 13 Cal.4th 25, gave custodial parents the “presumptive right” to relocate with their children as long as it was in the kids’ best interests. Burgess was written by Justice Stanley Mosk, who died in 2001 and was succeeded by Moreno. On Thursday, 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, the wishes of the children and the reasons for the proposed move. In dissent, Justice Joyce Kennard said that the majority ignored the potential harm to the children of losing their mother as their primary caretaker. 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,” 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.” Leslie Shear, a certified family law specialist in Encino, Calif., who filed an amicus curiae brief on behalf of several individuals and groups backing children’s rights, agreed, calling the decision “an absolute victory for the children.” The ruling, she said, “basically restores to family law judges the power to consider every factor that bears on the child’s well-being in making an individualized determination.” Neither Shear nor Dailey was worried about Burton’s Senate Bill 1367. Last year the state Legislature codified the ruling in Burgess, and Burton’s bill does little more, they said, while the court merely clarified Burgess.Burgess means what the Supreme Court said it means,” Dailey said, “not what the Legislature says it means.” Even so, Marci Fukuroda, a staff attorney at L.A.’s California Women’s Law Center, said a “legislative fix” is still needed and that crafting the proper legislation and finding support for it will be the next challenge. In the meantime, Fukuroda said, the court’s ruling will give judges “unfettered discretion” to control families’ moves and increase litigation that poor mothers and fathers can’t afford. The ruling is In re the Marriage of LaMusga, 04 C.D.O.S. 3687.

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