Court hears custody case

SACRAMENTO - The California Supreme Court heard arguments Monday about when custodial parents should be allowed to move out of state if the other parent objects.

The case revolves around a 1996 ruling, called the Burgess standard, that said a custodial parent may move, unless the noncustodial parent can prove it would harm the children. That ruling said the custodial parent no longer had to prove that moving away was a necessity in order to get permission.

Advocates for fathers and mothers, divorce attorneys, and scholars of legal and social issues are watching the case, which could clarify rules for out-of-state moves.

The seven-member court heard oral arguments in Sacramento, where they meet in February and November. A decision is expected within 90 days.

The case involves a custody dispute between Gary LaMusga and Susan Navarro, a Bay Area couple who divorced in 1995. The couple's two sons, then 2 and 4, remained with their mother.

Navarro, who later remarried, asked the court to alter the children's visitation schedule with their father so she could move to Ohio, where her new husband had a job offer.

In August 2001, a judge turned down the request, saying it would hurt LaMusga's relationship with his sons. If Navarro moved to Ohio, the court said, her ex-husband would get custody of the boys.

Navarro appealed and in May 2002, an appeals court reversed that decision. LaMusga then appealed to the California Supreme Court.

Navarro has since moved to Arizona, taking her sons with her.

Navarro's attorney, Tony J. Tanke, said Monday the first court erred in refusing to allow his client to move with her sons because it focused "on what harm would occur to the father."

Garrett Dailey, LaMusga's lawyer, said the appeals court was wrong to overturn the original order. Allowing the mother to move discounted the father's relationship with his sons, he said. If father's relationship with his sons was hurt, Dailey said, that was "purely collateral damage."

The trial court had the right to restrict the move, Dailey said, because the Burgess standard doesn't give the custodial parent an absolute right to move.

"In most cases, the custodial parent is going to get to move with the children, but not in all cases" where it would not be in the child's best interest, Dailey said.

Justice Joyce L. Kennard asked both lawyers whether the standard required the court to weigh the possible effects on the children of the two outcomes - if they moved with their mother and saw their father less often, or if custody was awarded to their father.

Tanke said the first judge didn't take that into account, but should have considered whether changing custody would disrupt "continuity of care" and be a greater harm to the children than moving.

Dailey said the first court ruling was in the best interest of the children and should be upheld.

The Burgess case involved an intrastate move, said Justice Marvin R. Baxter, questioning Tanke about whether the standard should be applied in interstate or international moves.

"It should. The standard is the same," Tanke said.

If the Supreme Court upholds the appeal court ruling, the case will return to the trial court for a hearing that will consider all the current circumstances, said Tanke.

The state Legislature has also stepped into the fray, passing a law last year that codifies the Burgess standard.

"While the Legislature cannot tell this court what to do," it can send a message about how it believes the law should be applied, Tanke said. In this case, he said, lawmakers were concerned "that this case would lessen the Burgess standard."

The case is In re the marriage of LaMusga, S107355.