Fifty Ways to Leave Your Lover A Psychologist Looks at Move-Away Disputes Move-

Stephen E. Doyne, Ph.D.

A Successful Marriage Takes Commitment

But Sometimes the Best, LongLong-Term Marriages Fail

Then Custody Can Become An Issue .

Divorced Parents Frequently Move



MoveMove-away requests present some of the most complex and vexing issues in our family courts As 25% of all divorced parents relocate within four years of dissolution, the question of whether it is in the childrens best interest to be moving with the primary caretaker or remaining with a non-custodial nonparent is often addressed in psychological evaluation The relevant factors that this psychologist examines in move-away conflicts will be reviewed in the context moveof current case law both in Arizona and California

Arizona Case Law



Arizona family law statutes address these issues by looking at the moving parent:
The Court shall determine whether to allow the parent to relocate the child in accordance with the childs best interests. The burden of proving what is in the childs best interests is on the parent seeking to relocated the child. To the extent practicable, the Court shall make appropriate arrangements to ensure the continuation of a meaningful relationship between the child and both parents.

As to whether relocation is granted, the Court also wants to discern whether the relocation is being made or opposed in good faith and not to interfere or to frustrate the relationship between the child and the other parent or the other parents right of access to the child.

California Case Law



Current case law in California differs because of Burgess. (1996, 13 Cal .425) Prior to that Supreme Court decision, the custodial parent had the burden to prove that it was in the childs best interest to relocate. With Burgess, the Supreme Court decided Burgess, the custodial parent does not have to justify the move.
In an initial judicial custody determination based upon the best interests of the minor children, a parent seeking to relocate does not bear the burden of establishing that the move is a necessary condition of custody.

They also shifted the burden of proof to the non-custodial parent nonIn a move-away case, change of custody is not justified simply because the custodial moveparent has chosen for any sound faith reason to reside in a different location but only, if, as a result of relocation with that parent the child will suffer detriment rendering an essential or expedient for the welfare of the child that there be a change.

Best Interests


 

When conducting a psychological assessment on whether it is in childrens best interests to relocate, Burgess requires the evaluator to assume the custodial parent will be residing in the new location The psychologist must research whether it is in the childrens best interests to move with the custodial parent or remain with the non-custodial parent nonAn evaluator cannot recommend the parent remain in the same community as the Court has only jurisdiction over the children In evaluations, custody plans for the children, if the minors relocate or remain, are outlined for the Court with the respective possible positive or negative consequences to them

Best Interests
 

With Burgess, the non-custodial parent must show that Burgess, nondetriment will occur to prevent the children from relocating Why a custodial parent is moving is not an issue unless it is clearly to frustrate visitation with the non-custodial parent. Then nonthe detriment standard may apply. The Court looks at the best interests of the children unless it is clear the move will cause harm to the childrens relationship with the non-custodial parent. nonIn cases of joint or equally shared custody, Burgess may not be presumptive. A new Supreme Court case, LaMusga (2004, 32 CALL.41072) refines Burgess somewhat, but does not lose the thread that a custodial parent does not have to prove the worthiness of their move

Best Interests


In the LaMusga case, the Court-appointed evaluator found in Courtthis high conflict family clear evidence of alienating behavior on the part of the mother. As a result, that psychologist, Dr. Phillip Stahl, recommended longer periods with the father to counter this alignment although he noted the noon-custodial parent was noonnot an angel As a result of this case, the California legislature amended the Family Code to read, It is the intent of the legislature to affirm the decision in Re Marriage of Burgess and to declare that ruling to be the public policy of this law and this state. In LaMusga, the Court defined, The essential or expedient rule LaMusga, to say that it is meant that nay change in custody had to be in the best interests of the child. The court also reduced the text to just essential and, therefore, had increased the fathers burden of proof.

Best Interests


The Court also noted that the trial court cannot use a conditional transfer order calling the custodial parents bluff or to coerce that individual into not moving as the transfer must have an independent best interests basis Finally, the Supreme Court cleared up the discrepant interpretations of the good faith/bad faith rule and set up a mixed motive move. That is, the Court can look behind the stated reasons to see if there is a secondary bad faith move on the part of the custodial parent.

Relevant Factors
LaMusga listed the following relevant factors for the Court to consider:
1. 2. 3. 4. 5. 6. 7. 8.

Stability and continuity Distance of move Childs age Childs relationship with parents Relationship between parents Reasons for move Childs wishes Current parenting arrangement

Parenting Plans for Young Children

Developmental Needs of Children
When considering whether relocation is in the childrens best interests, it is primary that their chronological age and developmental stage be considered as childrens needs differ greatly.

Parenting Plans for Young Children

Developmental Needs of Children
Infants and Toddlers (0 3)
     

Children develop initial attachments, the basis of trust Receptive language skills developed by the end of first year Separation individualization occurs and the child begins to develop their own personality Toddlers begin to develop autonomy Require predictability, consistency and routine Childs relationship with primary caregiver is paramount

Parenting Plans for Young Children

Developmental Needs of Children
Preschoolers (3 5)  Children better understanding language, relationships and feelings  Sex role identification is developing  Preschoolers are at risk for regression when attachments are anxious and they do not understand conflicts of their parents

Parenting Plans for Young Children

Developmental Needs of Children
SchoolSchool-Aged (6 12)
       

Children here thrive on structure and routine Peer relationships are becoming more important Creativity grows and they learn to master social rules Socialization is important They learn to express and understand their feelings and master cognitive/academic skills Children of this age have different relationships with each parent Divorce can make children feel overwhelmed where they try in vain to fix things Alignments can become highlighted, increasing risk of alienation

Parenting Plans for Young Children

Developmental Needs of Children
Adolescents (13 17)
     

Primary task is developing greater independence and autonomy from the family Adolescents typically express resistance while forming their identity Teens may be moody and reactive to their emotions They may be overwhelmed by peers and strive for their approval more than that of the parents Some adolescents want little or nothing to do with one parent This may be due to alienation, frustration over the divorce, moral indignation of the parents behavior or exhaustion over a poor relationship

Parental Alienation


The term Parental Alienation Syndrome generally causes controversy because, during a custody conflict, the label is applied indiscriminately to children who reject a parent regardless of the type of rejection or the reasons. There are three possible reasons this may occur: 1. Children are not alienated, but resist spending time or exhibit hostility to a parent 2. Children resist becoming alienated despite one parents denigration of the other 3. Children who are truly alienated, but not caused by the favorite parents influence

Parental Alienation


Some psychologists prefer the name Child Alienation rather than Parental Alienation as it is the minor who is estranged or aligned. There is no parental alienation syndrome as defined by psychiatrist, Richard Gardner. No syndrome is listed in the Diagnostic and Statistical Manual of the American Psychiatric Association by this name. In move-away cases, alienation is frequently used as a common movedefense by non-custodial parents to thwart an attempted nonrelocation. Whether or not alignment has occurred is another issue for an evaluator to address.

Significant Issues in Evaluation Regardless of Relocation

There are a number of issues to address in consideration of a childs best interests in moving or remaining with a non-custodial nonparent:
1. 2.

3.

What is the nature of the childs relationship with each parent pre- and post-separation prepostWhat is the actual custodial arrangement now? How well does it work? What are the problems? Why does someone have primary custody? What developmental stages of the child and the childs capacities to maintain a relationship with distance. (i.e., interplay of move and development tasks)

Significant Issues in Evaluation Regardless of Relocation

4. 5.

6.

What are the gender, temperament, and fit between each parent and child? What is the potential meaning of the loss to the child: What is the child going to experience if the proposed move does or does not take place? What is the mental health of the moving parent whether he or she will facilitate a positive relationships with the other parent over time. Burgess suggests that if that parent is trying to frustrate visitation, that would go against the moving parents request. Therefore, a relevant question is what is the history of the moving parents facilitating or interfering with the other parents access?

Significant Issues in Evaluation Regardless of Relocation

7.

8. 9.

What are the childs special needs and if there are siblings, activities, and friends that will represent other losses to the child. What is the impact a move will have on such relationships, needs, or activities? Given the childs age and ability to self-expression, selfwhat are his or her wishes? What are the reasons for the move, both stated and hidden

Significant Issues in Evaluation Regardless of Relocation

10.

11. 12.

What are the realities of visitation if the move is to proceed? For example, money, geography, and flexibility of the parents Is the move representative of stability or a pattern of instability on the part of the moving parent? Given the circumstances are there alternative parenting plans that might be suggested?

Evaluation Case Example: Move Away



Mother is the primary caretaker of 4-year old Downs 4Syndrome son and wants to relocated to Washington State Father has had continued problems visiting the child with mother accusing him of domestic violence in the marriage and sexual abuse of the child but no substantiation of either by Child Protective Services Father alleges mother is emotionally unstable, alienating, and previously lost custody of other three children from a previous marriage based on her questionable status

Evaluation Case Example: Move Away



Mother wants to move with 4-year old to 4Washington to be closer to her other children and denies being unstable Mother has PhD in education and works part-time but parthas primarily raised the child Father works in family business and travels frequently, but claims he can provide more stability for son

New Research Evidence About Childrens Best Interests in Relocation Cases



In a recent study by Braver et el (2003), the authors surveyed 600 young adults (college students) whose parents had divorced sometime during their childhood. For some, neither parent had moved very far from the intact familys home. These young adults were compared to students where at least on parent had moved more than an hours drive away from the family home. In this study, 14 variables representing financial and emotional support form parents, personal distress, and emotional adjustments, social relations, substance abuse, and physical health were assessed by report. On these dimensions, students reports a preponderance of negative effects associated with parental moves by the mother or father with or without the child as compared to divorced families in which neither parent moved away.

New Research Evidence About Childrens Best Interests in Relocation Cases



Compared to divorced families where neither parent moved, students from families where one parent moved:
1. 2. 3. 4. 5. 6. 7.

Received less financial support from their parents Worried more about that support Felt more hostility in interpersonal relationships Suffered more distress related to their parents divorce Perceived their parents less favorable as a source of emotional support as role models Believed the quality of their parents relationships with each other to be worse Rated themselves less favorable on their general physical health, their general life satisfaction, their personal emotional adjustment

New Research Evidence About Childrens Best Interests in Relocation Cases



Other data indicate children were less likely to experience either of their parents moving if they reported their parents had joint legal custody as opposed to sole maternal legal custody. Children of divorced parents who moved showed less favorable scores on several other variables.
1. 2. 3.

4.

Hostility Parents getting along in either turmoil or distress Paternal support and concern about physical health Higher hostility in college students has been found to predict greater coronary risk factors twenty-on to twentytwentytwentythree years later Higher levels of family conflict have been associated with poor physical health in adolescents

New Research Evidence About Childrens Best Interests in Relocation Cases



The implications of this data are where children enjoy a good relationship with the non-custodial parent and nonthe move is not prompted by the need to otherwise remove children from a detrimental environment, there may be real value in discouraging moves by custodial parents. This appears to be true whether or not it was the custodial parent who relocated with the children or the non-custodial parent moving away. non-

Conclusions: Best Interests



In move-away disputes, the developmental needs of movethe children are paramount as research indicates these changes potentially may have long-term longdetrimental effects. In some states, case law permits parents to move as long as it can be shown it is in the childrens best interests and their primary caretaker has not tried to frustrate visitation In custody evaluations related to these conflicts, a number of factors must be considered including the childs expressed preference, particularly if they are in the early phases of adolescence, and potential loss and separation anxiety