Speech Before the California Judicial Counsel on the Subject of Move-aways

Anne was invited to present to the California Judicial Counsel on the subject of move-aways generally, and about the impact of the notorious California move-away case, In Re Marriage of Burgess. The Burgess decision was decided in April, 1996; this is the text of Anne’s speech to the California Judicial Counsel in October of 1996.

Good morning. My name is Anne Mitchell, and I’m pleased to be here this morning to speak to you about fathers and “the best interest of the child.”


Because I am speaking about fathers, and because they are usually – not always – but usually, the noncustodial parent in a disunited family, I will be addressing these issues from a mother-custody perspective.


Few would argue that the best situation for a child is to be raised in an intact family, with two loving parents.


Yet, once a family disunites, it seems inexplicably easy for many of us to find life with only one parent to be no worse for a child then life with two involved, albeit disunited, parents. Somehow, it is as if the act of dissolving the family unit negates the benefit to the child of the involvement of the parent who is leaving the family home. It is as if we say, “Your mother no longer needs your father, so neither do you.”


And yet, expert after expert, and study upon study, indicate just how very important to a child’s best interest and well-being the involvement of their father is.


Consider this: according to the US Bureau of Census, in 1992 there were nearly 10 million homes in which children were living with only their mothers. At least 4.2 million of those children had fathers who did not have any timeshare.


I am the executive director of a national father’s organization, and a poll of our 1200 members and associates revealed that at least 25% of them had had their children moved away from them – out of state – and more than 500 miles away.


Nationally, at least 3.4 million children do not even live in the same state as their father!


Do many of these fathers want to be involved with their children? You bet they do! Some of them, however, don’t ask, or assert their parenting desires, because they feel it would be futile, or because they have been discouraged by their family, their in-laws, and, often, even their own attorneys.


Mnookin and Maccoby, in their Stanford Child Custody study of divorcing parents in San Mateo and Santa Clara counties, found that of all the fathers who wanted joint custody, less than 1/2, only about 40%, actually asked for it. The same held true for fathers who wanted sole custody.


Even in those cases where the father did ask for shared parenting in the form of joint custody, if mom wanted sole custody, she got it nearly 70% of the time. And in cases where each parent wanted sole custody, mothers got it by a 4-to-1 margin. Even in instances where both parents requested father-custody, the mother was still awarded custody in more than 12% of the cases!


These were fathers who wanted to be active, involved parents. The majority of fathers want to be active, involved parents. And those 10 million children, those children whose family and lives we impact every day, need active, involved fathers.


We know that there is a link between father-absence and the rise in youth crime. David Blankenhorn, in his book, Fatherless America, explains that, “put simply, we have too many boys with guns because we have too few fathers.”


Studies show that teenaged girls who have been raised in father-absent circumstances are more than 100% more likely to get pregnant and perpetuate the cycle by giving birth to their own father-absent children.


The silver lining in the cloud we call In Re Marriage of Burgess is that it compels us, indeed, requires us, to finally face squarely the issue which we have been able to side-step for far too long: father-involvement is necessary to a child’s well-being. Father-involvement is in a child’s best interest. Father-absence is not in a child’s best interest, and is, in fact, usually detrimental to their well-being.


So, now what? Am I suggesting that every time a mother wants to move she should be restrained, or that custody should be changed to dad? Of course not.


However, Burgess does instruct us that we may consider, in a move away case, the extent to which the child’s contact with their father will be impaired by relocating.


And, I am suggesting that if that contact and relationship will be substantially impaired, that it is not in the best interests of the child — indeed it is contrary to the child’s best interest.


We also have a responsibility, which is, indeed, encouraged by the Burgess court, to be thoughtful and creative when recrafting the timeshare arrangements attendant to a pending move-away. For example, Burgess tells us that the Selzer court, while allowing mom to move away with the child, actually increased dad’s timeshare, and allocated the travel necessary to effect that timeshare to the mother.


I’d like to suggest an informal test to apply when trying to determine just where exactly the best interests of the child lay:


First, look individually at the child’s involvement with the custodial parent, with the noncustodial parent, and with their environment — by which I mean school, extra-curricular activities, extended family, and so on. Then look at those 3 elements taken together, as a whole, to determine what ‘weight’, if you will, each carries in proportion to the others.


If, on balance, both separately and comparatively, you do believe that it is in the child’s best interest to be moved with the custodial parent — then look at what arrangements can be made to as closely as possible approximate the presently existing non-custodial timeshare arrangements and relationship.


If it is not feasible to keep a similar arrangement in place, then try to maximize the noncustodial timeshare.


Get creative! Get both parents involved and encourage them to be creative! This will, by the way, be the best time to determine whether or not the move is in reality an effort to frustrate timeshare (which is often really as much about control as it is about thwarting the other parent). Those parents whose desire to move is sincere and not about control, will be much more motivated and forthcoming with creative solutions to facilitating timeshare.


The bottom line, to paraphrase Justice Baxter in his Burgess concurrence and dissent, is that change in circumstances, including a pending relocation, warrants modification of formal custody or visitation if “significant” enough to indicate that modification would be in the child’s “best interest,” i.e., better for the child, all things considered, than keeping the existing arrangements intact. The parent seeking modification bears the burden of persuasion on this issue, but need not go further, and need not establish the existence of positive detriment, or prejudice which requires such a change for the child’s welfare. It’s a “best interest” test.


Depending on the particular facts, the impending relocation of either parent may well represent just such a significant change in the child’s “best interest.” As our statutory law makes clear, California’s public policy strongly favors the maximum contact between a minor child and both of his parents. This policy must be considered in the “best interest” balance. Doing so does not constitute an undue interference with a parent’s personal rights. When one assumes parental responsibilities, her obligations include good faith efforts to foster both her own bond with the child and the relationship which exists between the child and the other parent. When a custody dispute arises, the court must weigh the child’s “best interest” even where that may affect a parent’s freedom of travel, lifestyle, or economic interest. Concerns may arise when a separated parent who has legal status, and who has maintained a diligent relationship with the child, stands to lose the existing pattern of contact because a unilateral pending relocation will place the child beyond his or her reach. This potential disruption of the parent-child relationship may well mean, in the child’s “best interest,” that a modification of the existing rules for custody or visitation should occur.


In deciding whether a relocation warrants a modification of custody or visitation, the court is, of course, free to consider the quality of the current relationship between the child and each parent. The degree of diligence a parent has displayed in maintaining voluntary contact with his child is highly pertinent when deciding whether the relocation of either parent justifies a change in the arrangements previously ordered.


Finally, explains Justice Baxter, although a parent who seeks to relocate need not prove the move is “necessary” in order to retain or change the award, the reasons for the change in residence have some bearing on the “best interest” analysis. Even if the relocation is not a conscious effort to frustrate parent-child contact, casual motives for moving may indicate the relocating parent’s lack of commitment to the child’s interest in a continuing bond with both parents. The court may and should take that into account when deciding whether a consequent change in the award is justified.


I’d like to conclude by taking this opportunity to thank you all for caring enough to be here, for looking out for our children, and for recognizing fathers as parents too.


Thank you.