The Relocation of Children and Custodial Parents: Public Policy, Past and Present

Family Law Quarterly

Volumn 30, Issue 2, 1996, Pages 245-302

  Bruch, Carol S ^a   Bowermaster, Janet M ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b CALIFORNIA WESTERN SCHOOL OF LAW   (United States)

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EID: 0030496767     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (268)

1. The terms "separate" and "separation" are used here for convenience only. Many children are born to parents who have never shared a household. These children's relationships to their primary caretakers are entitled to at least the same level of deference as are those of children whose parents once lived together. Indeed, if the men who fathered them are not protected by state or constitutional law, these children's relationships with their mothers are entitled to even greater protection in the relocation context. See, e.g., CAL. FAM. CODE § 3010(a) (West 1994) (granting equal custody rights only to those who meet the statutory definition of "presumed father").
2. ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DIMENSIONS OF CUSTODY 271 (1992) ("In short, despite some revolutionary changes in the law to eliminate gender stereotypes and to encourage greater gender equity, the characteristic roles of mothers and fathers remain fundamentally different"). The authors explain, "Although fathers [in intact households] were often involved in the day-to-day lives of their children, we judge (on the basis of other studies as well as our own) that on average they usually spent much less time alone with the children and did not normally share equally in the responsibility of child care on an everyday basis." Id. at 268. These general patterns were maintained after divorce: "[W]e found that the distribution of outcomes was again heavily weighted toward a traditional pattern of child care. . . . In about 10 percent of the households, there was some reversal of the traditional roles in that the children lived with the father . . . ." Id. Even the one out of six families in which residential arrangements were "more evenly balanced," "the division of child-rearing responsibilities was not typically 50-50," with two-thirds of these children spending more overnights with their mothers than their fathers and with mothers handling matters such as doctors' appointments and the purchase of everyday clothing. Id. at 268-69.
3. ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DIMENSIONS OF CUSTODY 271 (1992) ("In short, despite some revolutionary changes in the law to eliminate gender stereotypes and to encourage greater gender equity, the characteristic roles of mothers and fathers remain fundamentally different"). The authors explain, "Although fathers [in intact households] were often involved in the day-to-day lives of their children, we judge (on the basis of other studies as well as our own) that on average they usually spent much less time alone with the children and did not normally share equally in the responsibility of child care on an everyday basis." Id. at 268. These general patterns were maintained after divorce: "[W]e found that the distribution of outcomes was again heavily weighted toward a traditional pattern of child care. . . . In about 10 percent of the households, there was some reversal of the traditional roles in that the children lived with the father . . . ." Id. Even the one out of six families in which residential arrangements were "more evenly balanced," "the division of child-rearing responsibilities was not typically 50-50," with two-thirds of these children spending more overnights with their mothers than their fathers and with mothers handling matters such as doctors' appointments and the purchase of everyday clothing. Id. at 268-69.
4. ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DIMENSIONS OF CUSTODY 271 (1992) ("In short, despite some revolutionary changes in the law to eliminate gender stereotypes and to encourage greater gender equity, the characteristic roles of mothers and fathers remain fundamentally different"). The authors explain, "Although fathers [in intact households] were often involved in the day-to-day lives of their children, we judge (on the basis of other studies as well as our own) that on average they usually spent much less time alone with the children and did not normally share equally in the responsibility of child care on an everyday basis." Id. at 268. These general patterns were maintained after divorce: "[W]e found that the distribution of outcomes was again heavily weighted toward a traditional pattern of child care. . . . In about 10 percent of the households, there was some reversal of the traditional roles in that the children lived with the father . . . ." Id. Even the one out of six families in which residential arrangements were "more evenly balanced," "the division of child-rearing responsibilities was not typically 50-50," with two-thirds of these children spending more overnights with their mothers than their fathers and with mothers handling matters such as doctors' appointments and the purchase of everyday clothing. Id. at 268-69.
5. ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DIMENSIONS OF CUSTODY 271 (1992) ("In short, despite some revolutionary changes in the law to eliminate gender stereotypes and to encourage greater gender equity, the characteristic roles of mothers and fathers remain fundamentally different"). The authors explain, "Although fathers [in intact households] were often involved in the day-to-day lives of their children, we judge (on the basis of other studies as well as our own) that on average they usually spent much less time alone with the children and did not normally share equally in the responsibility of child care on an everyday basis." Id. at 268. These general patterns were maintained after divorce: "[W]e found that the distribution of outcomes was again heavily weighted toward a traditional pattern of child care. . . . In about 10 percent of the households, there was some reversal of the traditional roles in that the children lived with the father . . . ." Id. Even the one out of six families in which residential arrangements were "more evenly balanced," "the division of child-rearing responsibilities was not typically 50-50," with two-thirds of these children spending more overnights with their mothers than their fathers and with mothers handling matters such as doctors' appointments and the purchase of everyday clothing. Id. at 268-69.
6. See, e.g., FRANK F. FURSTENBERG, JR. & ANDREW J. CHERLIN, DIVIDED FAMILIES: WHAT HAPPENS TO CHILDREN WHEN PARENTS PART 75 (1991) (parental conflict and the custodial parent's ability to function have more impact on children's adjustment than custody and visitation arrangements); Letter from Judith S. Wallerstein, Executive Director, Center for the Family in Transition, to Senator Bill Lockyer, Chair, Senate Judiciary Committee, California Senate 2 (May 10, 1993) ("to face the custodial parent [by means of a restriction on relocation] with having to choose between reestablishing his or her life . . . and losing custody of the child is detrimental to the psychological adjustment of that parent and burdens the parent/child relationship whichever way the decision is made") (emphasis added). See also notes 55 & 58 infra.
7. The difficult policy questions raised by seemingly frivolous decisions to relocate or those designed to interfere with the noncustodial parent's access to the children are discussed in the text following note 77 and in notes 57-71, 76 & 156 infra and accompanying text.
8. It is, of course, possible that the custodial parent will have children by more than one former partner, or that spouses in a second marriage will each have the primary custody of children from prior relationships.
9. See, e.g., Who Gets the Kids?, CALIF. LAW., April 1993, at 24, 25: "Many family law attorneys believe that if the mother tried to move today, she could do so only by giving up custody. But they acknowledge they don't really know under what circumstances a parent would be allowed to retain custody."
10. Because most custodial parents are women and because they are far more financially vulnerable than the children's fathers after separation, the unfortunate gender-specific implications of restrictive relocation practices are apparent. Summarizing the work of Sara McLanahan of Princeton University, Furstenberg and Cherlin note: [A]lmost two fifths of divorced mothers move in the first year after divorce, a rate far higher than the occurrence for stably married families during the same interval. Even after the first year, divorced women continue to move at a rate of about 20 percent a year, about one third more often than women in intact marriages. More of the moves reported by divorced women resulted from necessity than choice, especially in the immediate aftermath of divorce. During the first year after divorce, 15 percent of the divorced women were forced to move -seven times the rate of forced moves among stably married women. FURSTENBERG & CHERLIN, supra note 3, at 54-55 (citing Sara S. McLanahan, Family Structure and Stress: A Longitudinal Comparison of Two-Parent and Female-Headed Families, 45 J. MARRIAGE & FAM. 347 (1983)).
11. See generally Jennifer L. Janeiro, California Move-Away Law and the Need for Change 12-14 (unpublished 1994) (on file with Professor Bruch).
12. Kevin E. McHugh, Book Review, 67 ECON. GEOGRAPHY 376 (1991) (discussing chapter by Robert R. Sell in LABOUR MIGRATION (James H. Johnson & John Salt eds., 1990)).
13. Kevin E. McHugh, Book Review, 67 ECON. GEOGRAPHY 376 (1991) (discussing chapter by Robert R. Sell in LABOUR MIGRATION (James H. Johnson & John Salt eds., 1990)).
14. In 1993, for example, the California Governor's Office of Planning and Research projected the loss of 200,000 jobs and $7 billion in personal income in the state because of military base closures. State of California, Governor's Office of Planning and Research, California Military Base Closures Summary Information (July 1993). Such state-specific economic plights encourage long-distance relocations by custodial parents who are dependent on wages for their families' support. See also note 7 supra.
15. Remarriage affects the lives of most custodial mothers. About 50% of all non-African American divorced mothers who are eligible for spousal support will remarry within 5 years of divorce. Karen Fox Folk et al., Child Support and Remarriage, 13 J. FAM. ISSUES 142, 154 (1992). Ultimately, it is estimated approximately 70% of all divorced women will remarry. Arthur J. Norton & Jeanne E. Moorman, Current Trends in Marriage and Divorce Among American Women, 49 J. MARRIAGE & FAM. 3, 13 (Alan Booth et al. eds., 1987). About 50% of women who remarry during their childbearing years have children with their new husbands. Lynn White, The Effect of Parental Divorce and Remarriage on Parental Support for Adult Children, 13 J. FAM. ISSUES 234, 236 (1992). This means that, in the event of her new husband's need to work outside the area, a remarried woman may be required to choose between separation from her children from a prior marriage or separation from her new spouse and, perhaps, her children by him. Janeiro, supra note 8; see also infra note 110 and accompanying text.
16. Remarriage affects the lives of most custodial mothers. About 50% of all non-African American divorced mothers who are eligible for spousal support will remarry within 5 years of divorce. Karen Fox Folk et al., Child Support and Remarriage, 13 J. FAM. ISSUES 142, 154 (1992). Ultimately, it is estimated approximately 70% of all divorced women will remarry. Arthur J. Norton & Jeanne E. Moorman, Current Trends in Marriage and Divorce Among American Women, 49 J. MARRIAGE & FAM. 3, 13 (Alan Booth et al. eds., 1987). About 50% of women who remarry during their childbearing years have children with their new husbands. Lynn White, The Effect of Parental Divorce and Remarriage on Parental Support for Adult Children, 13 J. FAM. ISSUES 234, 236 (1992). This means that, in the event of her new husband's need to work outside the area, a remarried woman may be required to choose between separation from her children from a prior marriage or separation from her new spouse and, perhaps, her children by him. Janeiro, supra note 8; see also infra note 110 and accompanying text.
17. Remarriage affects the lives of most custodial mothers. About 50% of all non-African American divorced mothers who are eligible for spousal support will remarry within 5 years of divorce. Karen Fox Folk et al., Child Support and Remarriage, 13 J. FAM. ISSUES 142, 154 (1992). Ultimately, it is estimated approximately 70% of all divorced women will remarry. Arthur J. Norton & Jeanne E. Moorman, Current Trends in Marriage and Divorce Among American Women, 49 J. MARRIAGE & FAM. 3, 13 (Alan Booth et al. eds., 1987). About 50% of women who remarry during their childbearing years have children with their new husbands. Lynn White, The Effect of Parental Divorce and Remarriage on Parental Support for Adult Children, 13 J. FAM. ISSUES 234, 236 (1992). This means that, in the event of her new husband's need to work outside the area, a remarried woman may be required to choose between separation from her children from a prior marriage or separation from her new spouse and, perhaps, her children by him. Janeiro, supra note 8; see also infra note 110 and accompanying text.
18. See, e.g., CAL. FAM. CODE § 3040 (West 1994).
19. See In re Marriage of Carney, 598 P.2d 37 (Cal. 1979); Burchard v. Garay, 724 P.2d 486 (Cal. 1986).
20. Carney, 598 P.2d at 38; Burchard, 724 P.2d at 488-91.
21. 598 P.2d 37 (Cal. 1979).
22. 724 P.2d 486 (Cal. 1986).
23. Carney, 598 P.2d at 38; Burchard, 724 P.2d at 489, 490-91.
24. CAL. FAM. CODE § 7501 (West 1994).
25. Id.; the section is derived from former CAL. CIV. CODE § 213.
26. Id.; the section is derived from former CAL. CIV. CODE § 213.
27. Section 104 read: "A parent entitled to the custody of a child has a right to change his residence, subject to the power of the supreme court to restrain a removal which would prejudice the rights or welfare of the child." NEW YORK (STATE) COMMISSIONERS OF THE CODE, THE CIVIL CODE OF THE STATE OF NEW YORK § 104 (1865) [hereinafter FIELD CODE]. In New York the supreme court is the trial court of general jurisdiction. Although New York never adopted the Field Code, amended versions were enacted by the Dakota Territory, California (1872), Idaho (1887) and Montana (1895). Edgar Bodenheimer, Is Codification an Outmoded Form of Legislation?, 30 AMER. J. COMP. L. 15, 16 (1982). Its enactment in California was supported by Field's brother, Stephen J. Field, then an influential member of the California legislature and later a justice of the California and United States Supreme Courts. Charles E. Clark, Code Pleading and Practice Today, in DAVID DUDLEY FIELD: CENTENARY ESSAYS 55, 56 (Alison Reppy ed., 1949). The supreme courts of Montana and South Dakota have decided relocation cases in recent years under their versions of § 104. See infra notes 85-104 and accompanying text.
28. Section 104 read: "A parent entitled to the custody of a child has a right to change his residence, subject to the power of the supreme court to restrain a removal which would prejudice the rights or welfare of the child." NEW YORK (STATE) COMMISSIONERS OF THE CODE, THE CIVIL CODE OF THE STATE OF NEW YORK § 104 (1865) [hereinafter FIELD CODE]. In New York the supreme court is the trial court of general jurisdiction. Although New York never adopted the Field Code, amended versions were enacted by the Dakota Territory, California (1872), Idaho (1887) and Montana (1895). Edgar Bodenheimer, Is Codification an Outmoded Form of Legislation?, 30 AMER. J. COMP. L. 15, 16 (1982). Its enactment in California was supported by Field's brother, Stephen J. Field, then an influential member of the California legislature and later a justice of the California and United States Supreme Courts. Charles E. Clark, Code Pleading and Practice Today, in DAVID DUDLEY FIELD: CENTENARY ESSAYS 55, 56 (Alison Reppy ed., 1949). The supreme courts of Montana and South Dakota have decided relocation cases in recent years under their versions of § 104. See infra notes 85-104 and accompanying text.
29. Section 104 read: "A parent entitled to the custody of a child has a right to change his residence, subject to the power of the supreme court to restrain a removal which would prejudice the rights or welfare of the child." NEW YORK (STATE) COMMISSIONERS OF THE CODE, THE CIVIL CODE OF THE STATE OF NEW YORK § 104 (1865) [hereinafter FIELD CODE]. In New York the supreme court is the trial court of general jurisdiction. Although New York never adopted the Field Code, amended versions were enacted by the Dakota Territory, California (1872), Idaho (1887) and Montana (1895). Edgar Bodenheimer, Is Codification an Outmoded Form of Legislation?, 30 AMER. J. COMP. L. 15, 16 (1982). Its enactment in California was supported by Field's brother, Stephen J. Field, then an influential member of the California legislature and later a justice of the California and United States Supreme Courts. Charles E. Clark, Code Pleading and Practice Today, in DAVID DUDLEY FIELD: CENTENARY ESSAYS 55, 56 (Alison Reppy ed., 1949). The supreme courts of Montana and South Dakota have decided relocation cases in recent years under their versions of § 104. See infra notes 85-104 and accompanying text.
30. 5 Paige Ch. *596 (1836).
31. The introduction to the New York Commissioner's final report explains the relevance of the cases cited in its draft: So far as reported cases serve for illustration, the present Code makes use of them; for the references to adjudged cases, which in most instances follow the sections, are intended . . . to answer the purpose of illustration . . . . It is a favorite idea . . . that, for promoting certainty, the propositions of a Code should be accompanied by illustrative examples. . . . [T]hese references, it is supposed, will afford the best kind of illustration. FIELD CODE, supra note 20, at xx-xxi. The preface to the first annotated Civil Code of California, prepared by two of the three California Code Commissioners, puts it somewhat differently: It is, then, the object of the notes attached to the various sections of the Codes to explain the reason and intent of the law, to make it clear and easy of comprehension, and to show its application, not only generally, but to circumstances which, though within the principle, may not fall strictly within the letter, of the statute. 1 CAL. CIV. CODE, Preface, at vi (1872) (Haymond and Burch) (emphasis in original). As to Field's philosophy of codification, see Alison Reppy, The Field Codification Concept, in DAVID DUDLEY FIELD, supra note 20, at 17, 29-30.
32. The introduction to the New York Commissioner's final report explains the relevance of the cases cited in its draft: So far as reported cases serve for illustration, the present Code makes use of them; for the references to adjudged cases, which in most instances follow the sections, are intended . . . to answer the purpose of illustration . . . . It is a favorite idea . . . that, for promoting certainty, the propositions of a Code should be accompanied by illustrative examples. . . . [T]hese references, it is supposed, will afford the best kind of illustration. FIELD CODE, supra note 20, at xx-xxi. The preface to the first annotated Civil Code of California, prepared by two of the three California Code Commissioners, puts it somewhat differently: It is, then, the object of the notes attached to the various sections of the Codes to explain the reason and intent of the law, to make it clear and easy of comprehension, and to show its application, not only generally, but to circumstances which, though within the principle, may not fall strictly within the letter, of the statute. 1 CAL. CIV. CODE, Preface, at vi (1872) (Haymond and Burch) (emphasis in original). As to Field's philosophy of codification, see Alison Reppy, The Field Codification Concept, in DAVID DUDLEY FIELD, supra note 20, at 17, 29-30.
33. 5 Paige Ch. at *605.
34. See De Manneville v. De Manneville, 10 Ves. 52, 65, 32 Eng. Rpt. 762, 767-68 (1804) (Chancery) ("Some method must be taken to secure to the Court, that the person of the child shall remain in this country."). Two other cited cases discussed extra-territorial removal, the applicable standards and the power of the court to remove a child from its father's custody, using jurisdictional language, but are less clearly based on geographic jurisdiction over the child's person. See Wellesley v. Wellesley, II Bligh N.S. 124-26, 4 Eng. Rpt. 1078-79 (1828) (House of Lords) (both aspects involved in case, although at different times); Creuze v. Hunter, 2 Cox 243, 30 Eng. Rpt. 113 (1790) (Chancery).
35. See, e.g., Titcomb v. Superior Court, 220 Cal. 34, 39-43 (1934), which describes the doctrines that permitted a new location to assert jurisdiction over custody matters without regard to earlier orders and prevented the children's legal residence from asserting jurisdiction in their absence. See also Lerner v. Superior Court, 38 Cal. 2d 676, 681-82, 242 P.2d 321, 324-26 (1952) (Traynor, J.). A related concern is evident in California Family Code § 3063 (West 1994), which provides that a person who is granted custody under an ex parte order is automatically restrained from leaving the jurisdiction until a noticed hearing on the custody matter is held; that factual and legal situation is, however, quite different from relocations governed by the Field Code provision, which is set forth in California Family Code § 7501. The language concerning ex parte orders was added to the statutes in 1989. 1989 Cal. Stats. ch. 1265, § 1.
36. 9 U.L.A. 123 (promulgated 1968) [hereinafter UCCJA].
37. 28 U.S.C. § 1738A (1988).
38. Convention on the Civil Aspects of International Child Abductions of 25 October 1980, 19 I.L.M. 1501 (1980) [hereinafter Hague Convention]; International Child Abduction Remedies Act, 42 U.S.C. § 11601 (1988) (implementing the Convention).
39. Status as of 9 June 1995, Hague Conference on Private International Law, Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (reflecting entry into force dates through July 1, 1995).
40. Brigitte M. Bodenheimer, Equal Rights, Visitation, and the Right to Move, 1 FAM. ADV. 18 (1978); Brigitte M. Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 CALIF. L. REV. 978, 1003-12 (1977) (UCCJA's original reporter discusses travel restrictions and implications of joint custody orders for interstate cases); Carol S. Bruch, And How Are the Children? The Effects of Ideology and Mediation on Child Custody Law and Children's Well-Being in the United States, 2 INT'L J.L. & FAM. 106, 114 (1988), reprinted at 30 FAM. & CONCILIATION CTS. REV. 112, 120 (1992); see also Carol S. Bruch, International Child Abduction Cases: Experience under the 1980 Hague Convention, in PARENTHOOD IN MODERN SOCIETY 353, 358-59 (John Eekelaar & Petar Sarcevic eds., 1993). Judicial reluctance to permit a child to reside elsewhere with its primary caretaker may prompt refusals to return children to the United States for custody trials. Recently, for example, the State Department dealt with a case in which a British woman who was the primary caretaker of her young child had gone home to her parents when her marriage broke down, taking the child with her. Under the Hague Convention, she was ordered to return the child to New Jersey for custody litigation. When she did, the New Jersey court granted her custody, but only if she remained in New Jersey so that the father and his child from a former marriage would have convenient visitation (he with the child, the stepdaughter with her stepmother). The woman was forced to find refuge in a homeless shelter. Although no one counselled the woman to disobey the court order and she did not do so, the State Department official who discussed the case with Professor Bruch thought it likely that the English courts would have refused to return the child a second time if the mother had returned to that country in violation of the court order. (Article 13(b) of the Convention displaces the return obligation when it would endanger the child by placing it in an intolerable situation.) Two years after the litigation began, the father and judge agreed to permit the mother and child to leave this country; the child's grandmother did not know the reasons, but thought it was because the father "is facing bankruptcy and has been in trouble with police for a drug-related incident" and "we suspect he may have found someone else." Letter from L.T. to Carol S. Bruch (May 18, 1995). In another case, the German Constitutional Court temporarily stayed an order to return a young child to the United States for custody litigation in order to consider whether separating the child from its primary caretaker (who had returned to her family in Germany) would violate the child's best interest, which is protected by the German Constitution. Nr. 385 BVerfG, 41 FAMRZ 663-64 (1995). It is not clear whether the mother's reluctance to return to the United States for trial stemmed from a concern that, even if she was awarded custody, she might not be permitted to return to Germany to rear her child. Although her constitutional argument failed and the stay of the return order was lifted, German authorities have raised concerns about American courts' travel restrictions in conversations with Professor Bruch, who is conducting research on the Convention. These cases and conversations suggest a danger that provincial travel restrictions may prompt exceptions to return that will undercut the Convention's remarkable success in ensuring that custody trials occur in the place of the child's habitual residence and in facilitating visitation across national boundaries.
41. Brigitte M. Bodenheimer, Equal Rights, Visitation, and the Right to Move, 1 FAM. ADV. 18 (1978); Brigitte M. Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 CALIF. L. REV. 978, 1003-12 (1977) (UCCJA's original reporter discusses travel restrictions and implications of joint custody orders for interstate cases); Carol S. Bruch, And How Are the Children? The Effects of Ideology and Mediation on Child Custody Law and Children's Well-Being in the United States, 2 INT'L J.L. & FAM. 106, 114 (1988), reprinted at 30 FAM. & CONCILIATION CTS. REV. 112, 120 (1992); see also Carol S. Bruch, International Child Abduction Cases: Experience under the 1980 Hague Convention, in PARENTHOOD IN MODERN SOCIETY 353, 358-59 (John Eekelaar & Petar Sarcevic eds., 1993). Judicial reluctance to permit a child to reside elsewhere with its primary caretaker may prompt refusals to return children to the United States for custody trials. Recently, for example, the State Department dealt with a case in which a British woman who was the primary caretaker of her young child had gone home to her parents when her marriage broke down, taking the child with her. Under the Hague Convention, she was ordered to return the child to New Jersey for custody litigation. When she did, the New Jersey court granted her custody, but only if she remained in New Jersey so that the father and his child from a former marriage would have convenient visitation (he with the child, the stepdaughter with her stepmother). The woman was forced to find refuge in a homeless shelter. Although no one counselled the woman to disobey the court order and she did not do so, the State Department official who discussed the case with Professor Bruch thought it likely that the English courts would have refused to return the child a second time if the mother had returned to that country in violation of the court order. (Article 13(b) of the Convention displaces the return obligation when it would endanger the child by placing it in an intolerable situation.) Two years after the litigation began, the father and judge agreed to permit the mother and child to leave this country; the child's grandmother did not know the reasons, but thought it was because the father "is facing bankruptcy and has been in trouble with police for a drug-related incident" and "we suspect he may have found someone else." Letter from L.T. to Carol S. Bruch (May 18, 1995). In another case, the German Constitutional Court temporarily stayed an order to return a young child to the United States for custody litigation in order to consider whether separating the child from its primary caretaker (who had returned to her family in Germany) would violate the child's best interest, which is protected by the German Constitution. Nr. 385 BVerfG, 41 FAMRZ 663-64 (1995). It is not clear whether the mother's reluctance to return to the United States for trial stemmed from a concern that, even if she was awarded custody, she might not be permitted to return to Germany to rear her child. Although her constitutional argument failed and the stay of the return order was lifted, German authorities have raised concerns about American courts' travel restrictions in conversations with Professor Bruch, who is conducting research on the Convention. These cases and conversations suggest a danger that provincial travel restrictions may prompt exceptions to return that will undercut the Convention's remarkable success in ensuring that custody trials occur in the place of the child's habitual residence and in facilitating visitation across national boundaries.
42. Brigitte M. Bodenheimer, Equal Rights, Visitation, and the Right to Move, 1 FAM. ADV. 18 (1978); Brigitte M. Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 CALIF. L. REV. 978, 1003-12 (1977) (UCCJA's original reporter discusses travel restrictions and implications of joint custody orders for interstate cases); Carol S. Bruch, And How Are the Children? The Effects of Ideology and Mediation on Child Custody Law and Children's Well-Being in the United States, 2 INT'L J.L. & FAM. 106, 114 (1988), reprinted at 30 FAM. & CONCILIATION CTS. REV. 112, 120 (1992); see also Carol S. Bruch, International Child Abduction Cases: Experience under the 1980 Hague Convention, in PARENTHOOD IN MODERN SOCIETY 353, 358-59 (John Eekelaar & Petar Sarcevic eds., 1993). Judicial reluctance to permit a child to reside elsewhere with its primary caretaker may prompt refusals to return children to the United States for custody trials. Recently, for example, the State Department dealt with a case in which a British woman who was the primary caretaker of her young child had gone home to her parents when her marriage broke down, taking the child with her. Under the Hague Convention, she was ordered to return the child to New Jersey for custody litigation. When she did, the New Jersey court granted her custody, but only if she remained in New Jersey so that the father and his child from a former marriage would have convenient visitation (he with the child, the stepdaughter with her stepmother). The woman was forced to find refuge in a homeless shelter. Although no one counselled the woman to disobey the court order and she did not do so, the State Department official who discussed the case with Professor Bruch thought it likely that the English courts would have refused to return the child a second time if the mother had returned to that country in violation of the court order. (Article 13(b) of the Convention displaces the return obligation when it would endanger the child by placing it in an intolerable situation.) Two years after the litigation began, the father and judge agreed to permit the mother and child to leave this country; the child's grandmother did not know the reasons, but thought it was because the father "is facing bankruptcy and has been in trouble with police for a drug-related incident" and "we suspect he may have found someone else." Letter from L.T. to Carol S. Bruch (May 18, 1995). In another case, the German Constitutional Court temporarily stayed an order to return a young child to the United States for custody litigation in order to consider whether separating the child from its primary caretaker (who had returned to her family in Germany) would violate the child's best interest, which is protected by the German Constitution. Nr. 385 BVerfG, 41 FAMRZ 663-64 (1995). It is not clear whether the mother's reluctance to return to the United States for trial stemmed from a concern that, even if she was awarded custody, she might not be permitted to return to Germany to rear her child. Although her constitutional argument failed and the stay of the return order was lifted, German authorities have raised concerns about American courts' travel restrictions in conversations with Professor Bruch, who is conducting research on the Convention. These cases and conversations suggest a danger that provincial travel restrictions may prompt exceptions to return that will undercut the Convention's remarkable success in ensuring that custody trials occur in the place of the child's habitual residence and in facilitating visitation across national boundaries.
43. Brigitte M. Bodenheimer, Equal Rights, Visitation, and the Right to Move, 1 FAM. ADV. 18 (1978); Brigitte M. Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 CALIF. L. REV. 978, 1003-12 (1977) (UCCJA's original reporter discusses travel restrictions and implications of joint custody orders for interstate cases); Carol S. Bruch, And How Are the Children? The Effects of Ideology and Mediation on Child Custody Law and Children's Well-Being in the United States, 2 INT'L J.L. & FAM. 106, 114 (1988), reprinted at 30 FAM. & CONCILIATION CTS. REV. 112, 120 (1992); see also Carol S. Bruch, International Child Abduction Cases: Experience under the 1980 Hague Convention, in PARENTHOOD IN MODERN SOCIETY 353, 358-59 (John Eekelaar & Petar Sarcevic eds., 1993). Judicial reluctance to permit a child to reside elsewhere with its primary caretaker may prompt refusals to return children to the United States for custody trials. Recently, for example, the State Department dealt with a case in which a British woman who was the primary caretaker of her young child had gone home to her parents when her marriage broke down, taking the child with her. Under the Hague Convention, she was ordered to return the child to New Jersey for custody litigation. When she did, the New Jersey court granted her custody, but only if she remained in New Jersey so that the father and his child from a former marriage would have convenient visitation (he with the child, the stepdaughter with her stepmother). The woman was forced to find refuge in a homeless shelter. Although no one counselled the woman to disobey the court order and she did not do so, the State Department official who discussed the case with Professor Bruch thought it likely that the English courts would have refused to return the child a second time if the mother had returned to that country in violation of the court order. (Article 13(b) of the Convention displaces the return obligation when it would endanger the child by placing it in an intolerable situation.) Two years after the litigation began, the father and judge agreed to permit the mother and child to leave this country; the child's grandmother did not know the reasons, but thought it was because the father "is facing bankruptcy and has been in trouble with police for a drug-related incident" and "we suspect he may have found someone else." Letter from L.T. to Carol S. Bruch (May 18, 1995). In another case, the German Constitutional Court temporarily stayed an order to return a young child to the United States for custody litigation in order to consider whether separating the child from its primary caretaker (who had returned to her family in Germany) would violate the child's best interest, which is protected by the German Constitution. Nr. 385 BVerfG, 41 FAMRZ 663-64 (1995). It is not clear whether the mother's reluctance to return to the United States for trial stemmed from a concern that, even if she was awarded custody, she might not be permitted to return to Germany to rear her child. Although her constitutional argument failed and the stay of the return order was lifted, German authorities have raised concerns about American courts' travel restrictions in conversations with Professor Bruch, who is conducting research on the Convention. These cases and conversations suggest a danger that provincial travel restrictions may prompt exceptions to return that will undercut the Convention's remarkable success in ensuring that custody trials occur in the place of the child's habitual residence and in facilitating visitation across national boundaries.
44. Brigitte M. Bodenheimer, Equal Rights, Visitation, and the Right to Move, 1 FAM. ADV. 18 (1978); Brigitte M. Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 CALIF. L. REV. 978, 1003-12 (1977) (UCCJA's original reporter discusses travel restrictions and implications of joint custody orders for interstate cases); Carol S. Bruch, And How Are the Children? The Effects of Ideology and Mediation on Child Custody Law and Children's Well-Being in the United States, 2 INT'L J.L. & FAM. 106, 114 (1988), reprinted at 30 FAM. & CONCILIATION CTS. REV. 112, 120 (1992); see also Carol S. Bruch, International Child Abduction Cases: Experience under the 1980 Hague Convention, in PARENTHOOD IN MODERN SOCIETY 353, 358-59 (John Eekelaar & Petar Sarcevic eds., 1993). Judicial reluctance to permit a child to reside elsewhere with its primary caretaker may prompt refusals to return children to the United States for custody trials. Recently, for example, the State Department dealt with a case in which a British woman who was the primary caretaker of her young child had gone home to her parents when her marriage broke down, taking the child with her. Under the Hague Convention, she was ordered to return the child to New Jersey for custody litigation. When she did, the New Jersey court granted her custody, but only if she remained in New Jersey so that the father and his child from a former marriage would have convenient visitation (he with the child, the stepdaughter with her stepmother). The woman was forced to find refuge in a homeless shelter. Although no one counselled the woman to disobey the court order and she did not do so, the State Department official who discussed the case with Professor Bruch thought it likely that the English courts would have refused to return the child a second time if the mother had returned to that country in violation of the court order. (Article 13(b) of the Convention displaces the return obligation when it would endanger the child by placing it in an intolerable situation.) Two years after the litigation began, the father and judge agreed to permit the mother and child to leave this country; the child's grandmother did not know the reasons, but thought it was because the father "is facing bankruptcy and has been in trouble with police for a drug-related incident" and "we suspect he may have found someone else." Letter from L.T. to Carol S. Bruch (May 18, 1995). In another case, the German Constitutional Court temporarily stayed an order to return a young child to the United States for custody litigation in order to consider whether separating the child from its primary caretaker (who had returned to her family in Germany) would violate the child's best interest, which is protected by the German Constitution. Nr. 385 BVerfG, 41 FAMRZ 663-64 (1995). It is not clear whether the mother's reluctance to return to the United States for trial stemmed from a concern that, even if she was awarded custody, she might not be permitted to return to Germany to rear her child. Although her constitutional argument failed and the stay of the return order was lifted, German authorities have raised concerns about American courts' travel restrictions in conversations with Professor Bruch, who is conducting research on the Convention. These cases and conversations suggest a danger that provincial travel restrictions may prompt exceptions to return that will undercut the Convention's remarkable success in ensuring that custody trials occur in the place of the child's habitual residence and in facilitating visitation across national boundaries.
45. The Hague Convention, for example, returns children whose habitual residence was California if their taking or retention was wrongful under California law. No custody order is required to establish those rights. Hague Convention, supra note 28, art. 3.
46. Judicial efforts to restrict intra-California relocation were mentioned only twice, and in only one of these cases, in the context of a threatened interstate move, was the local restriction sustained. See Ward v. Ward, 309 P.2d 965, 968 (Cal. Ct. App. 1957) (expressing concern that mother might relocate to Hawaii with children unless restrained and requiring that the children remain resident in Calaveras County); Heinz v. Heinz, 157 P.2d 660 (Cal. Ct. App. 1945) (striking provision requiring custodial father to maintain child's residence in Los Angeles County). Heinz cited Luck v. Luck, 28 P. 787 (Cal. 1892), for the controlling standard: "[I]f he [the father] is entitled to the custody of the children at all, he has the right to name any reasonable place in which they shall abide with him." 157 P.2d at 662.
47. Several of these opinions do not mention the relocation statute. See In re Marriage of Burgess, 39 Cal. Rptr. 2d 213 (Cal. Ct. App. 1995) (relocation of 40 miles within state); In re Marriage of Selzer, 34 Cal. Rptr. 2d 824 (Cal. Ct. App. 1994) (relocation one-hour away by car within state); In re Marriage of Battenburg, 33 Cal. Rptr. 2d 871 (Cal. Ct. App. 1994) (interstate relocation); In re Marriage of Roe, 23 Cal. Rptr. 2d 295 (Cal. Ct. App. 1993) (interstate relocation); In re Marriage of McGinnis, 9 Cal. Rptr. 2d 182 (Cal. Ct. App. 1992) (relocation approximately three-hours away by car within state); In re Marriage of Carlson, 280 Cal. Rptr. 840 (Cal. Ct. App. 1991) (interstate relocation); In re Marriage of Fingert, 271 Cal. Rptr. 389 (Cal. Ct. App. 1990) (relocation approximately one-hour away by air within state).
48. As put by Justice Fairchild of the Wisconsin Supreme Court, I suppose that one of the fundamental difficulties . . . is that trial judges (if not appellate judges, as well) are somewhat loath to defer to courts of other states. This may be due to a tendency of any individual to think that in a situation demanding the wisdom of Solomon he can come closer than anyone else. Address by Justice Fairchild of the Supreme Court of Wisconsin, Conference of Chief Justices, Mim. 8 (August 1961), quoted in Brigitte M. Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 VAND. L. REV. 1207, 1211 (1969).
49. The older cases posit this, too, as a question of the court's "jurisdiction," usage that has changed in the intervening years. Some concerned the proper roles of chancery versus common law, while others seem more appropriately understood as attempting to articulate the legal justification for supervening parental decisions. See supra notes 23-24 and accompanying text. It is this last aspect of the cases and the resulting Code language that is addressed here.
50. Although the cases do not discuss the statute's legislative history or legislative intent, they nevertheless recognize the prerogatives of the custodial parent and that the burden of proof to restrain a move rests on the party challenging the move. See In re Marriage of Ciganovich, 132 Cal. Rptr. 261, 263 (Cal. Ct. App. 1976); Walker v. Superior Ct., 55 Cal. Rptr. 114, 117 (Cal. Ct. App. 1966); Forslund v. Forslund, 37 Cal. Rptr. 489, 500, 505 (Cal. Ct. App. 1964), Dozier v. Dozier, 334 P.2d 957 (Cal. Ct. App. 1959), Heinz v. Heinz, 157 P.2d 660 (Cal. Ct. App. 1945); see also Luck v. Luck, 28 P. 787, 787 (Cal. 1892) (discussing right of parent to decide county of residence; no mention of then Civil Code § 213 was made, probably because case did not involve an interstate move). But see Stack v. Stack, 11 Cal. Rptr. 177 (Cal. Ct. App. 1961); Ward v. Ward, 309 P.2d 965 (Cal. Ct. App. 1957). Forslund provides an especially clear statement that the removal of a child does not per se provide changed circumstances warranting a change of custody (37 Cal. Rptr. at 500) and a clear articulation of the controlling burden of proof (37 Cal. Rptr. at 505).
51. Because the Field Code employed a "best interest" test for other custody proceedings, it is clear that the "prejudice" standard under § 104 was a distinctive test. Compare FIELD CODE, supra note 20, § 104, with id. § 127 ("In awarding the custody of a minor . . . the court . . . is to be guided by . . . what appears to be for the best interest of the child . . . ."). It was also distinctive from "detriment, " a term that was defined only in the context of damages recoveries by § 1833 of the Field Code, supra note 20, and its counterpart, § 3282, of the original California Civil Code, supra note 22. The "detriment" standard now found in California Family Code § 3041 (West 1994), in contrast, was developed in response to the famous case of Painter v. Bannister, 140 N.W.2d 152 (Iowa 1966), where an Iowa court refused to return a boy to his California father (the child having been sent to live temporarily with his maternal grandparents following the deaths of his mother and sister in an automobile accident). 4 Assembly J. 8060 (1969 Reg. Sess.). The section's legislative history and an application of its amorphous detriment standard can be found in Guardianship of Marino, 106 Cal. Rptr. 655 passim & n.5 (Cal. Ct. App. 1973). Section 3041 has no application to interparental custody disputes. See CAL. FAM. CODE § 3041 (West 1994) ("Before making an order granting custody to a person or persons other than a parent, without the consent of the parents, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child."). The Family Code, however, does now permit a court considering the visitation rights of a parent with joint custody to refuse visitation upon a finding that visits would be detrimental to the best interest of a child. Id. § 3100. This section must be intended to operate in cases in which joint legal custody has been awarded in conjunction with a sole physical custody order; like § 3041, it is irrelevant to the custody decision itself, as opposed to the degree of visitation to be permitted. Because the detriment standard first entered California law almost a century after the Field Code, because it has no application to an award of custody in interparental litigation, and because its legislative history indicates a far less rigorous standard than does the legislative history of "prejudice," it cannot be thought to control the interpretation of the relocation statute, § 7501. Compare the legislative history set forth in Marino's footnote 5 with the legislative history of Family Code § 7501 set forth in notes 18-37 supra and accompanying text.
52. 280 Cal. Rptr. 840 (Cal. Ct. App. 1991).
53. Former CAL. CIV. CODE § 4600(a), (b)(1), now found in CAL. FAM. CODE §§ 3020, 3040 (West 1994). Not surprisingly; courts have emphasized the statute's protection of the noncustodial parent's contact with the child. The language, however, actually calls for contact with both parents, a point missed or ignored by courts that order a custody transfer without evaluating reductions the order will impose on contact between the child and the parent who had been the primary caregiver. See infra, text following note 56. For the purposes of this discussion, the term "noncustodial parent" will refer to a parent who is not in actual practice the child's primary caregiver.
54. 280 Cal. Rptr. at 844-45.
55. 39 Cal. Rptr. 2d 213, 220-23 (Cal. Ct. App. 1995). In this case, Mr. and Mrs. Burgess had agreed to Mrs. Burgess' sole physical custody of their two pre-school-aged children, although they shared legal custody and Mr. Burgess saw the children six days each week. Because Mrs. Burgess worked days and Mr. Burgess worked evenings, they agreed that so long as they remained in the same community and on the same work schedules, Mr. Burgess would see the children Monday through Wednesday mornings (except for the older child's hours at pre-school) and from Thursday morning until Saturday at 9 a.m. They also agreed that if Mr. Burgess changed to day shift, he would see the children instead on alternate weekends from 5 p.m. Friday until 5 p.m. Monday. They did not agree, however, as to arrangements if Mrs. Burgess left the community. When Mrs. Burgess took a better job 40 miles away, as anticipated, the trial court, over Mr. Burgess' objection, permitted her to move there with the children and awarded Mr. Burgess lengthy summer visitation during the remainder of the year from Wednesday night to Sunday night every other week. A divided court of appeals reversed, reasoning that, because she could commute to work, Mrs. Burgess had not established that the move was necessary rather than a matter of convenience. This test applied, in the majority's view, because it found that the move would have a detrimental impact on the nature and amount of Mr. Burgess' contact with his children and, hence, on his relationship with them. [Editor's note: Burgess has been decided. See "Author's Note" on page 245.]
56. See, e.g., California State Assembly Committee on Judiciary Bill Digest, A.B. 1480 (Imbrecht); California Senate Committee on Judiciary, Background Information: A.B. 1480 (sponsor's statement providing source, purpose and background information); Memorandum re A.B. 1480 from Steven P. Belzer, Committee Counsel, Senate Subcommittee on Administration, to Senator Jerry Smith, Chair, Senate Subcommittee on Administration of Justice and Senate Judiciary Committee. Rather than discussing the possibility that joint custody might require that parents live in the same community, the Assembly Digest points out that geographic proximity might need to be a prerequisite for a grant of joint custody. Assembly Digest at 3 ("Without . . . qualifying language, this bill would require . . . joint custody as a first alternative. . . . Would not practical aspects of joint custody also merit the court's consideration? For example, the geographical proximity between the two parents would be an important factor.").
57. California Senate Committee on Judiciary, Background Information: A.B. 1480 (In an attachment responding to a question about the bill's purpose, the sponsor wrote that the bill "proposes joint physical and legal custody . . . as the first, and priority, consideration . . . .").
58. See, e.g., Memorandum of Steven P. Beizer, supra note 42, at 2-3 ("Mr. Cook's [the sponsor's] language remains too strong. He wants to return to the joint legal and physical custody language rejected by the Assembly Judiciary Committee . . . . The problem remains that first preference . . . goes too far in the view of the bill's opponents."); Letter from James Cook, founder of Equal Rights for Fathers and sponsor of A.B. 1480 (Imbrecht), to Edmund G. Brown, Governor of California (Sept. 12, 1979) ("The present bill does represent a retreat from one principle preferred by proponents of the original A.B. 1480 version: A more distinct and unequivocal preference for joint custody . . . rather than equating joint custody as of equal consideration with sole custody.").
59. See, e.g., Statement of Professor Carol Bruch, Senate Judiciary Committee Hearing on A.B. 1480 (Aug. 21, 1979): Surely it is appropriate for us to recognize in statutory language that a joint custody decree may be a proper expression of the child's best interests when former spouses are able to cooperate. . . . But a network of provisions that place special restraints upon the court in this one area of custody decisions must be guarded against.
60. Only the late Professor Bodenheimer foresaw that the proposal's features, each unobjectionable individually, taken together might produce a perception that the bill "tilted" towards joint custody and that later corrective action might be required. See Statement by Professor Brigitte Bodenheimer, Hearing before Senate Committee on Judiciary (Aug. 21, 1979) ("each one of these changes may not seem to be overly significant").
61. See CAL. FAM. CODE § 3040(b) (West 1994).
62. See, e.g., California Legislature, 1993-94 Regular Session, S.B. 1528 § 2 (Wright) (as introduced, Feb. 16, 1994); id., A.B. 3041 § 2 (Bornstein) (as introduced, Feb. 22, 1994). The bills died in the Senate Judiciary Committee. Senate Final History of 1993 Regular Session; Assembly Final History of 1993-94 Regular Session.
63. Western Oil & Gas Ass'n v. Monterey Bay Unified Air Pollution Control Dist., 777 P.2d 157, 163-64 (Cal. 1989).
64. Droeger v. Friedman, Sloan & Ross, 812 P.2d 931, 942 (Cal. 1991), quoting Board of Supervisors v. Lonergan, 616 P.2d 802, 810 (Cal. 1980), quoting in turn Penziner v. West American Finance Co., 74 P.2d 252, 260 (Cal. 1937).
65. See In re M.S., 896 P.2d 1365 (Cal. 1995).
66. In re Marriage of Fingert, 271 Cal. Rptr. 389 (Cal. Ct. App. 1990), review den'd Sept. 26, 1990, 1990 Cal. LEXIS 4481; Bodenheimer articles, supra note 30.
67. See, e.g., Custody Abuse, 15 CALIF. LAW. 20, 20 (Mar. 1995) (describing a court's transfer of custody to a father who had previously been under a supervised visitation order).
68. This is in contrast to British case law, which considers "the likely effect on the family if leave is not given to depart." Gillian Douglas, Comment on Re B (Minors) (Removal from Jurisdiction), 24 FAM. LAW 11, 12 (1994) (summarizing the British authorities).
69. Letter from Judith S. Wallerstein, supra note 3, at 2: . . . I want to emphasize again the instability in the divorced family and the need to protect the core relationship between the custodial parent and the child and at the same time enable the parent to reconstruct his or her life. . . . In speaking with custodial parents who, in order to maintain custody of the child, have given up what they regarded as an opportunity of a lifetime . . . I have found them to be distraught and depressed after the decision to remain. Those who have left [without their children] have been in mourning. I cannot see how this promotes the interests of the child. See also additional language from this letter set forth in note 3 supra; Judith S. Wallerstein & Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 FAM. L.Q. 304 (1996).
70. Letter, supra note 55, at 2-3.
71. See, e.g., Judith S. Wallerstein, Children of Divorce: Report of a Ten-Year Follow-Up of Early Latency-Age Children, 57 AMER. J. ORTHOPSYCHIAT. 199, 208 (1987) ("Frequency of visiting was unrelated to the level of psychological functioning in boys or girls. But the quality of the father-child relationship was significantly related to good or poor psychological outcome among boys, although not among girls.").
72. See, e.g., Judith S. Wallerstein & Shauna B. Corbin, Daughters of Divorce: Report From a Ten-Year Follow-Up, 59 AMER. J. ORTHOPSYCHIAT. 593, 601 (1989) ("Contrary to the findings of this study's five-year follow up, frequency of contact between fathers and their children did not predict long-term outcome, nor did any other dimension of visiting, such as the pattern, duration, or reliability of contact."); ROBERT E. EMERY, MARRIAGE, DIVORCE, AND CHILDREN'S ADJUSTMENT 102-03 (1988): What family processes predict children's adjustment? A handful of factors stand out: the passage of time, the quality of children's relationships with their residential parents, parental conflict, and the economic standing of children's residential family. Equally important are factors for which predictive evidence is not strong: the long-term effects of the separation itself, the child's age, the amount of contact with the residential [sic] parent, and, for girls, remarriage. . . . Policies should be encouraged if they: (1) help to define a clear and relatively quick ending to the separation phase of divorce, (2) support the relationship between children and their residential parents, [and] (3) secondarily, encourage contact between children and their nonresidential parents . . . . See also FURSTENBERG & CHERLIN, supra note 3, at 107-08 ("Although most observers, ourselves included, have believed that continued contact makes a difference in children's adjustment, the evidence in support of that assertion is mixed at best. . . . Moreover, there are hints that increased contact with the outside parent or joint living arrangements can prolong or even generate conflict between quarrelsome exspouses."); Marsha Kline et al., Children's Adjustment in Joint and Sole Physical Custody Families, 23 DEVELOPMENTAL PSYCHOLOGY 430 (1989) (reporting no evidence that joint physical custody arrangements are different from sole physical custody arrangements with regard to postdivorce child adjustment).
73. See, e.g., Judith S. Wallerstein & Shauna B. Corbin, Daughters of Divorce: Report From a Ten-Year Follow-Up, 59 AMER. J. ORTHOPSYCHIAT. 593, 601 (1989) ("Contrary to the findings of this study's five-year follow up, frequency of contact between fathers and their children did not predict long-term outcome, nor did any other dimension of visiting, such as the pattern, duration, or reliability of contact."); ROBERT E. EMERY, MARRIAGE, DIVORCE, AND CHILDREN'S ADJUSTMENT 102-03 (1988): What family processes predict children's adjustment? A handful of factors stand out: the passage of time, the quality of children's relationships with their residential parents, parental conflict, and the economic standing of children's residential family. Equally important are factors for which predictive evidence is not strong: the long-term effects of the separation itself, the child's age, the amount of contact with the residential [sic] parent, and, for girls, remarriage. . . . Policies should be encouraged if they: (1) help to define a clear and relatively quick ending to the separation phase of divorce, (2) support the relationship between children and their residential parents, [and] (3) secondarily, encourage contact between children and their nonresidential parents . . . . See also FURSTENBERG & CHERLIN, supra note 3, at 107-08 ("Although most observers, ourselves included, have believed that continued contact makes a difference in children's adjustment, the evidence in support of that assertion is mixed at best. . . . Moreover, there are hints that increased contact with the outside parent or joint living arrangements can prolong or even generate conflict between quarrelsome exspouses."); Marsha Kline et al., Children's Adjustment in Joint and Sole Physical Custody Families, 23 DEVELOPMENTAL PSYCHOLOGY 430 (1989) (reporting no evidence that joint physical custody arrangements are different from sole physical custody arrangements with regard to postdivorce child adjustment).
74. See, e.g., Judith S. Wallerstein & Shauna B. Corbin, Daughters of Divorce: Report From a Ten-Year Follow-Up, 59 AMER. J. ORTHOPSYCHIAT. 593, 601 (1989) ("Contrary to the findings of this study's five-year follow up, frequency of contact between fathers and their children did not predict long-term outcome, nor did any other dimension of visiting, such as the pattern, duration, or reliability of contact."); ROBERT E. EMERY, MARRIAGE, DIVORCE, AND CHILDREN'S ADJUSTMENT 102-03 (1988): What family processes predict
75. See, e.g., Janet R. Johnston, High Conflict Divorce, 4 FUTURE OF CHILDREN 165, 174 (1994) (summarizing Janet R. Johnston et al. , Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access, 59 AMER. J. ORTHOPSYCHIAT. 576 (1989)): [A]s a group, children who had more shared access to both parents in joint custody arrangements and those who had more frequent visitation with a noncustodial [parent] in sole custody situations were more emotionally and behaviorally disturbed. Specifically, they were more depressed, withdrawn, and/or uncommunicative, had more somatic symptoms, and tended to be more aggressive. See also notes 76 & 156 infra.
76. See, e.g., Janet R. Johnston, High Conflict Divorce, 4 FUTURE OF CHILDREN 165, 174 (1994) (summarizing Janet R. Johnston et al. , Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access, 59 AMER. J. ORTHOPSYCHIAT. 576 (1989)): [A]s a group, children who had more shared access to both parents in joint custody arrangements and those who had more frequent visitation with a noncustodial [parent] in sole custody situations were more emotionally and behaviorally disturbed. Specifically, they were more depressed, withdrawn, and/or uncommunicative, had more somatic symptoms, and tended to be more aggressive. See also notes 76 & 156 infra.
77. Professors Maccoby and Mnookin report, "Our most disturbing finding with respect to legal conflict [in two California counties] concerns the frequency with which joint physical custody decrees are being used by high-conflict families to resolve disputes." MACCOBY & MNOOKIN, supra note 2, at 273.
78. Letter brief from Tony J. Tanke, Esq. to Malcolm M. Lucas, Chief Justice of California, in support of petition for review in Marriage of Burgess, [California Supreme Court] No. SO46116, at 4-5 (June 2, 1995) (describing In re Black, Alameda Co. Superior Ct.). This case is not atypical. See supra note 60.
79. See, e.g., FURSTENBERG & CHERLIN, supra note 3, at 72-73.
80. Professors Furstenberg and Cherlin are the co-editors of a series on family policy for Harvard University Press.
81. FURSTENBERG & CHERLIN, supra note 3.
82. Id. at 107-08: The [rank] order of [the principles we have distilled from our work] will be central to our argument because [they] can have conflicting implications. When that occurs, we will take support for the custodial parent and reduction in parental conflict as the primary goals, even if that means a reduction in contact with the noncustodial parent.
83. MACCOBY & MNOOKIN, supra note 2, at 295: "We believe that both parents should have the right to reorganize their lives, through remarriage and the pursuit of career opportunities, even if this entails moving some distance from the former partner." They also note, "[M]odifications and changes seem particularly common for those families who choose to adopt joint custodial arrangements or where the children reside primarily with the father. These families in particular should be prepared to deal with change." Id. at 292.
84. Valarie King, Nonresident Father Involvement and Child Well-Being: Can Dads Make a Difference?, 15 J. FAM. ISSUES 78 (1994).
85. JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A DECADE AFTER DIVORCE 243-44 (1989) (indicating that "double imaging" occurs, in which children see reality but do not draw the negative conclusions an objective observer would).
86. See, e.g., CAL. FAM. CODE §§ 3040, 3041 (West 1994).
87. See, e.g., id. § 3040(a)(2).
88. Parties often argue that a primary caretaker who wishes to relocate suffers from mental illness such that the child's welfare will be endangered if it is removed from the intervention of the other (assertedly healthier) parent or a therapist. This argument is a cloaked effort to relitigate the initial custody decision and cannot legitimately be used to shape relocation law. The law must proceed instead on the assumption that the initial custody decision was based upon the child's best interest; if relevant mental illness was involved at that time, the decision must be deemed to have placed the child with the healthier of the parents. The mental health of this custodial parent becomes relevant to a modification proceeding, then, only if it has altered sufficiently since the initial order to constitute changed circumstances. This question must stand or fall on its own merits, not on the fact that a relocation is at hand. Similarly, a move should not be refused simply because it would require that a child change therapists. Despite their value, therapists, like teachers and doctors, are often replaced at the instance of the professional or the family even if the child never moves. There are many common, legitimate reasons for seeking new sources of professional support for the child, of which relocation is one.
89. Some provisions have not been amended since the Civil Code was first adopted in 1872, while others have been amended only to make them gender neutral or for stylistic reasons. Compare, e.g., 1 CAL. CIV. CODE, supra note 22, §§ 196-200, with CAL. FAM. CODE §§ 3010, 3120 (West 1994).
90. This definition would include a parent who has sole physical custody (as defined in CAL. FAM. CODE § 3007 (West 1994)), a parent with joint physical custody or joint legal custody who has been designated the primary caretaker (id. § 3086), and a parent who has the primary physical care of the child according to the time or parenting schedule in a case in which joint physical custody has been ordered, but no primary caretaker has been designated. See generally id, § 3084 ("In making an order of joint physical custody, the court shall specify the rights of each parent to physical control of the child in sufficient detail to enable a parent deprived of that control to implement laws for relief of child snatching and kidnapping."). The definition would not apply, accordingly, to parents who are exercising substantially equal periods of physical custody (that is, in which each parent's actual caregiving is within a few percentage points of the other's share). See infra note 81 for a discussion of cases that do not employ traditional custody terminology.
91. See, e.g., CAL. FAM. CODE § 3083 (West 1994) ("An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.").
92. Carol S. Bruch, et al., Draft Research and Policy Bases for Relocation Cases (unpublished 1993). This effort was prompted by a request from California State Senator Bill Lockyer that Professor Bruch attempt to draft desirable presumptions and burdens of proof that would improve California's statutory relocation law. Professor Bruch's consultations with colleagues concerning sound substantive goals resulted instead in these jointly authored recommendations to supplement, but not replace, the Field Code language. Her co-authors were James Cramer, Ph.D. (Associate Professor of Sociology at the University of California, Davis), Blake Keasey, Ph.D. (forensic child psychologist and Clinical Professor of Psychiatry at the University of California, Davis), Carol Rodning, Ph.D. (Associate Professor of Human Development and Family Studies and Director of the Center for Child and Family Studies at the University of California, Davis), and Judith Wallerstein, Ph.D. (psychologist, researcher on the effects of divorce on children, and Founding Director, Center for Families in Transition, Corte Madera, California).
93. In view of the mental health literature cited above, this formulation is probably too narrow. First, there is reason for concern about the child's welfare if there are frequent custody transfers in any case of high interparental conflict, whether or not that conflict is fairly termed abuse. See, e.g., supra notes 58-61 and accompanying text, infra note 156 and accompanying text. This issue has been specifically addressed by the MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE § 403 (National Council of Juvenile and Family Court Judges 1994) ("[I]t is in the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence in the location of that parent's choice, within or outside the state."). Second, for the reasons discussed infra in the text following note 77, a legal inquiry into parental motives improperly diverts the court's attention from children's interests and inappropriately encourages decisions that punish custodial parents' life choices at children's expense.
94. This somewhat unusual formulation was prompted by Dr. Wallerstein's experience with court orders that pay insufficient attention to the distinctive circumstances of older teenagers who fervently wish to remain in their current locale to complete secondary school even if this entails changing custodial households.
95. Siblings should be broadly defined for these purposes to include other children who are part of the child's family life, including, for example, half-siblings, step-siblings, and long-term foster children.
96. Punitive orders, in contrast, should constitute reversible error. See also infra notes 98-104 and accompanying text.
97. See generally Janet M. Bowermaster, Sympathizing with Solomon: Choosing Between Parents in a Mobile Society, 31 J. FAM. L. 791 (1993). For a thorough survey and discussion of pre-1985 case and statutory law, see Anne L. Spitzer, Moving and Storage of Postdivorce Children: Relocation, The Constitution and The Courts, 1985 ARIZ. ST. L.J. 1.
98. See generally Janet M. Bowermaster, Sympathizing with Solomon: Choosing Between Parents in a Mobile Society, 31 J. FAM. L. 791 (1993). For a thorough survey and discussion of pre-1985 case and statutory law, see Anne L. Spitzer, Moving and Storage of Postdivorce Children: Relocation, The Constitution and The Courts, 1985 ARIZ. ST. L.J. 1.
99. MACCOBY & MNOOKIN, supra note 2, at 268-70. Because changing terminology and efforts by judges, counsel or the parties to avoid custody terminology may obscure the relevant inquiry (which parent provides the primary care) and has led to problems at the trial and appellate levels, this article recommends defining the custodial parent for the purposes of relocation law according to any designation that reflects the primary relationship. California practice, for example, has recently begun to use "time shares" or "parenting plans" in cases that are denominated "joint physical custody," without necessarily designating the primary custodial parent. Compare In re Marriage of Birnbaum, 260 Cal. Rptr. 210, 213 (Cal. Ct. App. 1989) (holding that a trial court's order changing the primary household in a joint physical custody case was "at most" a change in the residential arrangement, not a change in custody that would require a showing of changed circumstances) with In re Marriage of Fingert, 271 Cal. Rptr. 389, 391 (Cal. Ct. App. 1990) ("We do not choose to chastise parents who fail to make mutually agreeable coparenting residential arrangements by suggesting that by such failure, they will have to accept whatever decision a trial court decides. We shall adhere to the standard of review announced by the Supreme Court.").
100. Professor Spitzer summarizes her 1985 review of the statutory law: Several states have statutes that automatically restrict the movement of the custodial parent upon divorce. The existence of a statute is, however, not necessarily an indication that it is more difficult for a custodial parent to leave the state than it would be in a state without a statute. Spitzer, supra note 80, at 35 (citation omitted).
101. See infra notes 105-06 and accompanying text.
102. See supra note 20 and accompanying text, discussing the history.
103. 500 N.W.2d 229 (S.D. 1993).
104. S.D. CODIFIED LAWS ANN. § 25-5-13 (1992).
105. 500 N.W.2d at 231. This interpretation is consistent, of course, with the language of Wood, set forth in the text accompanying note 23 supra.
106. Id. at 232.
107. For arguments to the same effect by the late Professor Brigitte Bodenheimer, the original Reporter of the Uniform Child Custody Jurisdiction Act, see the articles cited supra note 30.
108. 500 N.W.2d at 232-33. See supra notes 58-66 and accompanying text.
109. 545 N.W.2d 828 (S.D. 1996).
110. MONT. CODE ANN. § 40-6-231 (1993). This statute, too, traces to the Field Code. See supra note 20.
111. Lorenz v. Lorenz, 788 P.2d 328, 331 (Mont. 1990) ("This court has recognized that a custodial parent is presumptively entitled to change her own and the child's residence."); In re Marriage of Paradis, 689 P.2d 1263, 1265 (Mont. 1984) ("Deanne was presumptively entitled to move with Matthew and to settle in a new home."). In an original custody proceeding, there is no presumption either way. A parent's relocation is a factor for the court to consider in determining which parent should be designated as the primary custodial parent. In re Marriage of Hogstad, 914 P.2d 584 (Mont. 1996) (affirming an award of primary physical custody to the mother, who planned an out-of-state move for employment reasons).
112. In re Marriage of Johnson, 777 P.2d 305, 307 (Mont. 1989).
113. MONT. CODE ANN. § 40-4-222 (1993).
114. In a nonremoval case, the court explained that this burden is a heavy one due to the policy of preserving "stability and continuity of custody of the children." In re Marriage of Johnson, 879 P.2d 689, 694 (Mont. 1994).
115. See In re Marriage of Paradis, 689 P.2d 1263 (Mont. 1984); In re Marriage of Cole, 729 P.2d 1276 (Mont. 1986); In re Marriage of Bergner, 722 P.2d 1141 (Mont. 1986); In re Marriage of Johnson, 777 P.2d 305 (Mont. 1989); Lorenz v. Lorenz, 788 P.2d 328 (Mont. 1990).
116. 895 P.2d 619 (Mont. 1995).
117. Id. at 622-23.
118. Id. at 623.
119. Indeed, the same can be said of California's Burgess case, described in note 41 supra. In contrast to In re Marriage of Selzer, 34 Cal. Rptr. 2d 824 (Cal. Ct. App. 1994) (relocation one-hour away by car within state), where the appellate court noted the disparate impacts of commute burdens on the child's life, the Burgess court did not consider the possibility that the father, if he wished to remain involved in his children's daily schedules, had the choice of moving forty miles to their new location. This would have placed the commute burden on him, the person with more available time, instead of on the custodial parent, whose commute burdens would detract from the children's daily lives.
120. See supra, text following note 77.
121. Alternatively, it may have been intended to punish her for her efforts. See Bodenheimer, 65 CALIF. L. REV., supra note 30 (a criticism of such "punitive decrees" by the original Reporter of the Uniform Child Custody Jurisdiction Act).
122. See Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 792 (Vermont 1992); Taylor v. Taylor, 849 S.W.2d 319, 321 (Tenn. 1993); Harder v. Harder, 524 N.W.2d 325, 329 (Neb. 1994).
123. Mize, 621 So. 2d 417 (Fla. 1993). This presumption was confirmed recently in Russenberger v. Russenberger, 669 So. 2d 1044 (Fla. 1996). After strongly restating the presumption, the Russenberger court affirmed the lower court's finding that the noncustodial father had successfully rebutted the presumption by raising sufficient doubt as to the mother's good faith motivation for the move, her compliance with visitation, and the adequacy of the substitute visitation offered.
124. See FLA. STAT. ANN. § 61.13(2)(b) (West Supp. 1995).
125. Lane v. Schenck, 614 A.2d 786, 791 (Vt. 1992).
126. See VT. STAT. ANN. tit. 15, § 650 (1989).
127. 614 A.2d at 789-91.
128. See e.g., Taylor v. Taylor, 849 S.W.2d 319, 321 (Tenn. 1993) (forcing custodial mother to choose between her child and her new husband); Harder v. Harder, 524 N.W.2d 325, 329 (Neb. 1994) (same).
129. See Blake v. Blake, 541 A.2d 1201 (Conn. 1988).
130. See CONN. GEN. STAT. § 46b-56a(a) (1958).
131. 541 A.2d at 1204.
132. See (Smith-Hurd Supp. 1992) (emphasis added).
133. ILL. ANN. STAT., ch. 40, para. 609 (Smith-Hurd 1980); this "best interest" rule was, of course, quite different from that provided by CAL. FAM. CODE § 7501, as explained above.
134. ILL. ANN. STAT., ch. 40, para. 609 (Smith-Hurd 1980); this "best interest" rule was, of course, quite different from that provided by CAL. FAM. CODE § 7501, as explained above.
135. ILL. ANN. STAT., ch. 40, para. 609, Supplement to Historical & Practice Notes, at 65 (Smith-Hurd Supp. 1992).
136. 518 N.E. 2d 1041 (Ill. 1988).
137. Id. at 1045.
138. 518 N.E.2d at 1046 (discussing Ill. Rev. Stat., ch. 40, par. 102(7) (1986)).
139. 365 A.2d 27, 29-30 (N.J. Super. 1976).
140. See infra notes 141-50. After Eckert, the New Jersey Supreme Court further strengthened that state's support of the custodial household. See infra notes 143-49 and accompanying text.
141. In an opinion not yet released for publication, the Illinois Supreme Court reviewed an application of these factors in In re Marriage of Cheri Smith, 665 N.E.2d 1209 (Ill. 1996). In a fact-specific and poorly-reasoned opinion, the court affirmed an award of sole custody to the mother at the same time that it denied her permission to move with the children to New Jersey to live with her new husband.
142. In re Marriage of Eaton, 646 N.E.2d 635, 640 (Ill. App. Ct. 1995).
143. Id. at 641, 642.
144. See reversals of denials in In re Marriage of Samarripa-Gesundheit, 529 N.E.2d 780 (Ill. App. Ct. 1988); In re Marriage of Taylor, 559 N.E.2d 1150 (Ill. App. Ct. 1990); In re Marriage of Miroballi, 589 N.E.2d 565 (Ill. App. Ct. 1991); In re Marriage of Good, 566 N.E.2d 1001 (Ill. App. Ct. 1991); In re Marriage of Roppo, 587 N.E.2d 1031 (Ill. App. Ct. 1992); In re Marriage of Pribble, 607 N.E.2d 349 (Ill. App. Ct. 1993); In re Marriage of Young, 636 N.E.2d 1092 (Ill. App. Ct. 1994); In re Marriage of Wycoff, 639 N.E.2d 897 (Ill. App. Ct. 1994); In re Marriage of Eaton, 646 N.E.2d 635 (Ill. App. Ct. 1995); and a reversal of permission in In re Marriage of Kutinac, 538 N.E.2d 862 (Ill. App. Ct. 1989).
145. Burich v. Burich, 314 N.W.2d 82, 84 (N.D. 1981); this is, of course, the party who bears the burden under this article's reading of California Family Code § 7501.
146. N.D. CENT. CODE § 14-09-07 (1991).
147. Burich v. Burich, 314 N.W.2d 82, 84-85 (N.D. 1981); Olson v. Olson, 361 N.W.2d 249, 252 (N.D. 1985); Novak v. Novak, 441 N.W.2d 656 (N.D. 1989).
148. See, e.g., McRae v. Carbno, 404 N.W.2d 508 (N.D. 1987), where the state supreme court emphasized the role of visitation as it denied the custodial mother permission to relocate to Washington State with her child. It noted the state's "legally recognizable right of visitation between a child and the noncustodial parent which is considered to be in the best interests of the child" and emphasized the high level of importance the legislature and prior case law had placed on "frequent and continuing contact" with both parents after divorce. Id. at 509-10. The fact that the move would make the father's weekly visitation schedule impractical was the only negative factor mentioned in the opinion that denied her permission to move. She had hope to move to her parents' and sister's community, where she had been offered a job at her current salary but with more flexible working hours that would have given her more time with her child. Id. at 508.
149. Hedstrom v. Berg, 421 N.W.2d 488-90 (N.D. 1988).
150. Novak v. Novak, 441 N.W.2d 656, 658 (N.D. 1989).
151. Thomas v. Thomas, 446 N.W.2d 433, 435 (N.D. 1989) (quoting trial court findings).
152. Hedstrom, 421 N.W.2d at 490; Novak, 441 N.W.2d at 657-58; Thomas, 446 N.W.2d at 435.
153. See, e.g., Kerkvliet v. Kerkvliet, 480 N.W.2d 823, 829 (Wis. Ct. App. 1992).
154. "Because a motion for change of custody and a countermotion to change the residence of the child are inseparable and intermingled, . . . when one of the competing motions is granted, the other is effectively denied." McDonough v. Murphy, 539 N.W.2d 313, 318-19 (N.D. 1995); see also Thomas v. Thomas, 446 N.W.2d 433, 436 (N.D. 1989).
155. 488 N.W.2d 42, 43 (N.D. 1992).
156. Id. at 43.
157. 499 N.W.2d 584 (N.D. 1993).
158. Id. at 587.
159. McDonough v. Murphy, 539 N.W.2d 313, 318 (N.D. 1995).
160. 365 A.2d 27 (N.J. Super. Ct. Ch. Div. 1976), aff'd, 365 A.2d 716 (N.J. Super. Ct. App. Div. 1976).
161. N.J. REV. STAT. ANN. § 9:2-2 (West 1993).
162. 365 A.2d at 29.
163. 491 A.2d 606 (N.J. 1984).
164. Id. at 613.
165. Id. 147. Id. at 614.
166. Holder v. Polanski, 544 A.2d 852, 856 (N.J. 1988).
167. Id. at 857.
168. 365 A.2d at 30.
169. See MASS. GEN. LAWS ANN. ch. 208, § 30 (West 1987) (containing almost identical language); Yannas v. Frondistou-Yannas, 481 N.E.2d 1153, 1157 (Mass. 1985) (expressly adopting the New Jersey balancing approach as its standard for determining when removal should be allowed).
170. 481 N.E.2d at 1157, quoting Cooper v. Cooper, 491 A.2d 606, 612 (N.J. 1984).
171. Schwartz v. Schwarte, 812 P.2d 1268, 1270-71 (Nev. 1991).
172. NEV. REV. STAT. § 125A.350 (1991).
173. Jones v. Jones, 885 P.2d 563, 568 (Nev. 1994).
174. 885 P.2d at 569. This concern echoes that expressed in the guidelines proposed by this article; it should be tempered, however, by the recognition those guidelines provide that a custodial parent may properly seek to decrease a child's transfers between households in cases of high conflict or abuse. This issue has been specifically addressed by the MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE. See note 76 supra.
175. 885 P.2d at 570. The court's opinion can be compared usefully to California's appellate decisions in Burgess, McGinnis, and Selzer. See supra note 33 and accompanying text.
176. See Cook v. Cook, 898 P.2d 702, 706 (Nev. 1995); Gandee v. Gandee, 895 P.2d 1285, 1288-89 (Nev. 1995).
177. Trent v. Trent, 890 P.2d 1309, 1313 (Nev. 1995) (footnote omitted).
178. WIS. STAT. ANN. § 767.327(3)(a)(2)(a) (West 1993).
179. Id. § 767.327. Rather than seek permission to relocate, a parent who intends to move with the children out of state, or a distance more than 150 miles within the state, is required to give the other parent 60 days' written notice. Id. § 767.327(1). In California, a court may order a parent to provide notice of an intended relocation. CAL. FAM. CODE § 3024 (West 1994). This section, which was misread in In re Marriage of McGinnis, 9 Cal. Rptr. 2d 182, 185 (Cal. Ct. App. 1992), to require notice in all cases, is more appropriate than either the Wisconsin statute or the forced reading given it by McGinnis; the requirement is imposed only if a court decides that it is needed, and only in cases where the custodial parent has, accordingly been made aware of the requirement. Further, its express purpose is to allow time for mediation purposes, suggesting that lengthier delays to permit litigation are inappropriate.
180. WIS. STAT. ANN. § 767.327(3) (West 1993). This litigational scheme reflects similar burdens and standards to those CAL. FAM. CODE § 7501 provides for California law.
181. WIS. STAT. ANN. § 767.327(3) (West 1993). This litigational scheme reflects similar burdens and standards to those CAL. FAM. CODE § 7501 provides for California law.
182. Long v. Long, 381 N.W.2d 350, 356 (Wis. 1986).
183. Id. at 357.
184. Bohms v. Bohms, 424 N.W.2d 408, 410 (Wis. 1988).
185. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Auge v. Auge, 334 N.W.2d 393, 398-99 (Minn. 1983).
186. MINN. STAT. ANN. § 518.175 (West 1990).
187. Auge, 334 N.W.2d at 397; accord Forslund v. Forslund, 225 Cal. App. 2d 476, 37 Cal. Rptr. 489 (1st Dist. 1964).
188. MINN. STAT. ANN. § 518.18(d) (West 1990). This protection is not given, however, to primary caretakers, who share joint legal and physical custody; even primary caretakers who have far greater responsibilities under their orders are subjected by the statute to a "best interest" standard. Id. § 518.18(e) (West Supp. 1995); Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993).
189. Silbaugh, 543 N.W.2d at 641-42 (normal stresses associated with moving and separation from noncustodial parent are insufficient to trigger a hearing); Auge, 334 N.W.2d at 396.
190. Auge, 334 N.W.2d at 396. The Silbaugh court reaffirmed this reasoning, emphasizing that the primary consideration is the children's "need for a sense of stability in their familial arrangements." Silbaugh, 543 N.W.2d at 642.
191. IND. CODE ANN. § 31-1-11.5-21.1 (Burns Supplement 1995).
192. IND. CODE ANN. § 31-1-11.5-22(d) (Burns Supplement 1995).
193. Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992).
194. Id. 176. Id.; Poret v. Martin, 434 N.E.2d 885, 890 (Ind. 1982).
195. Id. at 99.
196. Id. at 98.
197. Villa v. Smith, 534 A.2d 1310 (Me. 1987).
198. ME. REV. STAT. ANN. tit. 19, § 752(12) (West 1992).
199. 629 A.2d 613 (Me. 1993).
200. ME. REV. STAT. ANN. tit. 19, § 752(5) (West Supp. 1992).
201. 629 A.2d at 615.
202. Id. at 617.
203. Ex parte Williams, 474 So. 2d 707 (Ala. 1985).
204. Id. at 711.
205. Id. at 712, quoting Cheatham v. Cheatham, 344 So. 2d 525, 527 (Ala. Civ. App. 1977).
206. Ex Parte Murphy, 670 So. 2d 51 (Ala. 1995); see also Ex Parte Jones, 620 So. 2d 4 (Ala. 1992).
207. In Jones the original decree provided that such a move would constitute a change in circumstances sufficient to reopen the question of custody, so at the time of the move the court did not have to decide whether a move absent such an order would present a material change in circumstances. In Murphy, the court did not discuss the issue of changed circumstances, but proceeded directly to examine the standard for custody modifications.
208. Ex Parte Murphy, 670 So. 2d at 53; Ex Parte Jones, 620 So. 2d at 6.
209. House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989).
210. Id. at 1207.
211. Id. at 1208.
212. Id. at 1208; Lee v. Cox, 790 P.2d 1359, 1361 (Alaska 1990); Pinneo v. Pinneo, 835 P.2d 1233, 1238 (Alaska 1992); McQuade v. McQuade, 901 P.2d 421 (Alaska 1995).
213. Lee v. Cox, 790 P.2d at 1361.
214. McQuade, 901 P.2d at 424.
215. ALASKA STAT. § 25.24.150(c) (1995) states: The court shall determine custody in accordance with the best interests of the child under AS 25.20.060-25.20.130. In determining the best interests of the child the court shall consider (1) the physical, emotional, mental, religious, and social needs of the child; (2) the capability and desire of each parent to meet these needs; (3) the child's preference if the child is of sufficient age and capacity to form a preference; (4) the love and affection existing between the child and each parent; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent.
216. McQuade, 901 P.2d at 424.
217. Osteraas v. Osteraas, 859 P.2d 948, 951 (Idaho 1993).
218. Id. 201. The law changed in Domingues v. Johnson, 593 A.2d 1133 (Md. 1991).
219. Jordan v. Jordan, 439 A.2d 26, 29 (Md. Ct. Spec. App. 1982).
220. Id. at 29.
221. Id. 205. 593 A.2d 1133 (Md. 1991).
222. Id. at 1140.
223. Id. at 1141.
224. Id. at 1140.
225. Goldmeier v. Lepselter, 598 A.2d 482 (Md. Ct. Spec. App. 1991).
226. Costantini v. Costantini, 521 N.W.2d 1, 1 (Mich. 1994).
227. Id. at 2.
228. Id. at 2, n.2, quoting Henry v. Henry, 326 N.W.2d 497 (1982).
229. [A] court must realize that possible improvement in the quality of life for the custodial parent, the primary caregiver in the family, will be intertwined with or give some benefit to the children, whether it is economic, emotional, or simply easing the caregiver's responsibilities with support from family and friends. Id. at 2, quoting Watters v. Watters, 314 N.W.2d 778 (Mich. App. 1981).
230. Id. at 3.
231. Bell v. Bell, 572 So.2d 841 (Miss. 1990); Stevison v. Woods, 560 So. 2d 176 (Miss. 1990); Spain v. Holland, 483 So. 2d 318 (Miss. 1986); Pearson v. Pearson, 458 So. 2d 711 (Miss. 1984); Cheek v. Ricker, 431 So. 2d 1139 (Miss. 1983).
232. Cheek v. Ricker, 431 So. 2d at 1144 ("In this day and time many persons must change their residence, sometimes even cross-country, in order to obtain suitable employment, and for other bona fide reasons."); Spain v. Holland, 483 So. 2d at 321 ("We close our eyes to the real world if we ignore that ours is a mobile society.").
233. Bell v. Bell, 572 So. 2d at 847.
234. Spain v. Holland, 483 So. 2d at 320.
235. Pearson v. Pearson, 458 So. 2d at 713-14.; Stevison v. Woods, 560 So. 2d at 180; Bell v. Bell, 572 So. 2d at 847.
236. Spain v. Holland, 483 So. 2d at 320.
237. Id. at 320-21.
238. Id. at 321.
239. Id. 224. Gottschall v. Gottschall, 316 N.W.2d 610 (Neb. 1982); Jensen v. Jensen, 319 N.W.2d 75 (Neb. 1982); Marez v. Marez, 350 N.W.2d 531 (Neb. 1984); Boll v. Boll, 363 N.W.2d 542 (Neb. 1985); Parsons v. Parsons, 365 N.W.2d 841 (Neb. 1985); Korf v. Korf, 378 N.W.2d 173 (Neb. 1985); Little v. Little, 381 N.W.2d 161 (Neb. 1986); Vanderzee v. Vanderzee, 380 N.W.2d 310 (Neb. 1986); Hicks v. Hicks, 388 N.W.2d 510 (Neb. 1986); Maack v. Maack, 389 N.W.2d 318 (Neb. 1986); Gerber v. Gerber, 407 N.W.2d 497 (Neb. 1987); Demerath v. Demerath, 444 N.W.2d 325 (Neb. 1989); Harder v. Harder, 524 N.W.2d 325 (Neb. 1994).
240. See, e.g., Illinois, supra notes 114-125 and accompanying text, and Nevada, supra notes 153-159 and accompanying text.
241. Orders directing a change of custody or denying permission to relocate children were affirmed in Marez, 350 N.W.2d 531 (1984); Parsons, 365 N.W.2d 841 (1985); and Vanderzee, 380 N.W.2d 310 (1986). Orders granting permission to remove children were affirmed in Gottschall, 316 N.W.2d 610 (1982); Jensen, 319 N.W.2d 75 (1982); Maack, 389 N.W.2d 318 (1986); Gerber, 407 N.W.2d 497 (1987); and Demerath, 444 N.W.2d 325 (1989).
242. Orders denying permission to relocate were reversed in Boll, 363 N.W.2d 542 (1985); Korf, 378 N.W.2d 173 (1985); Little, 381 N.W.2d 161 (1986); and Harder, 524 N.W.2d 325 (1994).
243. Jensen, 319 N.W.2d at 76; Boll, 363 N.W.2d at 545; Vanderzee, 380 N.W.2d at 312; Hicks, 388 N.W.2d at 515; Maack, 389 N.W.2d at 318; Demerath, 444 N.W.2d at 325; Harder, 524 N.W.2d at 328.
244. Little, 381 N.W.2d at 162; Hicks, 388 N.W.2d at 515; Harder, 524 N.W.2d at 328.
245. Boll, 363 N.W.2d at 545.
246. Boll, 363 N.W.2d at 545; Korf, 378 N.W.2d at 174; Gerber, 407 N.W.2d at 503; Harder, 524 N.W.2d at 328-29.
247. Boll, 363 N.W.2d at 545; Little, 381 N.W.2d at 162; Hicks, 388 N.W.2d at 515; Maack, 389 N.W.2d at 318; Harder, 524 N.W.2d at 329.
248. Little, 381 N.W.2d at 162; Hicks, 388 N.W.2d at 514.
249. See Harder, 524 N.W.2d at 328 (reversing lower court's denial of premission to custodial parent to move with the child to Arizona to live with her new husband, who was employed there). Accord Gottschall, 316 N.W.2d at 612; Boll, 363 N.W.2d at 545; Korf, 378 N.W.2d at 174; Little, 381 N.W.2d at 162; and Hicks, 388 N.W.2d at 515.
250. Tropea v. Tropea, 665 N.E.2d 145 (N.Y. 1996).
251. 418 N.E.2d 377 (N.Y. 1981). The court of appeals also heard a relocation case the following year in Daghir v. Daghir, 439 N.E.2d 324 (N.Y. 1982). This very short memorandum opinion contained little substantive discussion and was followed by a lengthy and passionate dissent.
252. Weiss, 418 N.E.2d at 380 (citation omitted).
253. See, e.g., Hagler v. Hagler, 460 So. 2d 187, 188 (Ala. Civ. App. 1984); Freeburg v. Freeburg, 596 So. 2d 794, 796 (Fla. Dist. Ct. App. 1992); Shook v. Shook, 247 S.E.2d 855, 856 (Ga. 1978); Shapiro v. Shapiro, 458 A.2d 1257, 1261 (Md. Ct. Spec. App. 1983).
254. Tropea, 665 N.E.2d 145 (N.Y. 1996).
255. Id.
256. Id. 242. Id. at *6.
257. Id. 244. Id. at *7.
258. Id.
259. 849 S.W.2d 319 (Tenn. 1993).
260. Seessel v. Seessel, 748 S.W.2d 422 (Tenn. 1988) (addressing burden of proof); Rogero v. Pitt, 759 S.W.2d 109 (Tenn. 1988) (discussing facts in the record, but without articulating any underlying approach); Nichols v. Nichols, 792 S.W.2d 713 (Tenn. 1990) (revisiting burden of proof).
261. Taylor, 849 S.W.2d at 326.
262. Id. at 332.
263. Love v. Love, 851 P.2d 1283, 1288-89 (Wyo. 1993).
264. Id. at 1289, quoting DeGrow v. DeGrow, 315 N.W.2d 915, 917 (Mich. App. 1982).
265. Id. at 1288.
266. See, e.g., In re Marriage of Bradley, 899 P.2d 471 (Kan. 1995); Wilson v. Messinger, 840 S.W.2d 203 (Ky. 1992); Jaramillo v. Jaramillo, 823 P.2d 299 (N. Mex. 1991); Masters v. Masters, 630 N.E.Zd 665 (Ohio 1994); Kenney v. Hickey, 486 A.2d 1079 (R.I. 1985); Gray v. Gray, 324 S.E.2d 677 (Va. 1985).
267. Many have also noted that the custodial parent's decision about where the child will live is a childrearing matter that should be entitled to deference. See Long, 381 N.W.2d at 356 (because of legislative recognition of custodial parent's responsibilities and powers); Taylor, 849 S.W.2d at 328 (because the custodial parent was originally determined to be the better parent to provide the child's day-to-day care); Lane, 614 A.2d at 789 (because of the impracticality of substituting the court's judgment for that of the custodial parent); Auge, 334 N.W.2d at 397 (because the custodial parent is usually the best equipped to make such decisions). As one court reasoned, It would be incongruous for a court, when presented with a custodial order originally based upon the best interests of the child to refuse to support the efforts of the custodial parent to maintain and enhance their standard of living, albeit in another jurisdiction. Taylor, 849 S.W.2d at 329.
268. Jones v. Jones, 885 P.2d 563, 568-69 (Nev. 1994); Mize v. Mize, 621 So. 2d 417, 419 (Fla. 1993); Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D. 1993); Taylor v. Taylor, 849 S.W.2d 319, 328, 329 (Tenn. 1993); Love v. Love, 851 P.2d 1283, 1288-89 (Wyo. 1993); Lane v. Schenck, 614 A.2d 786, 791 (Vt. 1992); Bergner v. Owens, 722 P.2d 1141, 1144 (Mont. 1986); Long v. Long, 381 N.W.2d 350, 355, 356 (Wis. 1986); Yannas v. Frondistou-Yannas, 481 N.E.2d 1153, 1157-58 (Mass. 1985); Cooper v. Cooper, 491 A.2d 606, 612 (N.J. 1984); Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983).