June 22, 2004
TO: Larry Doyle, Chief Legislative Counsel
BILL: Proposed Legislation re La Musga
POSITION: OPPOSE
Dear Larry:
The Executive Committee of the State Bar Family
Law Section has reviewed a draft of legislation
expected to be introduced in response to the
recent California Supreme Court case In Re
Marriage of La Musga.
The proposed legislation seeks first to totally
abrogate the La Musga ruling. The reason stated
is that the La Musga ruling does not reflect the
policy of the State, set forth at FC§7501 (based
on legislation last year purporting to codify
the holding of In Re Marriage of Burgess).
The Family Law Section Executive Committee
believes this is incorrect. A careful reading of
the La Musga opinion shows that the Supreme
Court in fact specifically affirmed and upheld
the Burgess decision in this recent case. The
Court clarified the Burgess decision as it
applied to the fact in La Musga.
The proposed legislation, as presently drafted,
sets forth a list of provisions that are too
extreme and one-sided to address the needs of
all parents, male and female, who are dealing
with the issues of a relocation/move-away. The
law should be balanced to protect the rights of
all parties, as well as their children, not just
one segment of the population.
As attorneys who consistently represent not only
both mothers and fathers, but also, when
appointed by the Court, the children involved in
such "move-away" cases, we have a strong
interest in ensuring a balanced approach to this
issue.
The La Musga opinion sets forth numerous
practical and realistic factors the Court must
consider in determining if a child's proposed
relocation is appropriate. One of the provisions
in the proposed legislation prohibits the Court
from considering any of these factors -
virtually eliminating anything for the Court to
consider in reaching a decision. Every one of
the factors the legislation seeks to eliminate
is relevant to a proper and balanced analysis of
the effect of the proposed move on the child(ren)
in question.
The Sponsors of this legislation basically take
the position that any parent who exercises
primary care (even 51%) of a child should be
allowed to dictate to the other parent what is
best for the child(ren). Their position is that
the primary parent's life choices (e.g.
relocation) are per se best for the child(ren)
regardless of any level of negative impact that
choice has on the child(ren).
A legislative policy that realistically gives
total control of a family's child(ren) to the
parent who has the majority of parenting time is
a time-bomb. This only forces parents in every
separation/dissolution to litigate fully any
initial parenting schedule that is not a 50-50
time sharing. Just because in many situations an
equal parenting schedule may not be appropriate,
at least initially, or in the child(ren)'s best
interest is not a legitimate basis for virtually
denying one parent any rights over his/her
child(ren).
The provision prohibiting a Court from making
any temporary order preventing one parent from
relocating, pending a Court's determination on
the ultimate issue of the move, is not
appropriate. To allow the relocating parent to
establish the child(ren)'s residence elsewhere
while the Court evaluates the issue is extremely
prejudicial and frankly unfair to the child(ren)
in the event the Court ultimately decides
against the permanent move for the child(ren),
causing significant distress and disruption of
the child(ren)'s life with repeated moves.
The legislation proposed would make it
impossible for a parent to ever prevent the
other parent from relocating their child(ren)
regardless of the harm to the child(ren) from
such a move. The Sponsor's fear is that the
decision in La Musga will do just the opposite -
make it impossible for a parent to relocate
his/her child(ren). This is not an accurate
reading/interpretation of the La Musga opinion.
The Supreme Court's opinion did not radically
change the process/analysis of the relocation
issue by the trial Court. The ultimate burden is
still on the non-moving party.
This proposed legislation actually expands the
applicability of §7501 far beyond what was
intended in In Re Marriage of Burgess. The
number of families that actually fall with in
the "exception" or description of §7501, as
determined in Burgess (where one parent has sole
physical custody by Court order or de facto
because of very minimal parenting time to the
other), is really only a small percentage of
divorced/separated families in California.
This legislation expands that description of
§7501 cases to impliedly include all cases where
one parent has the majority of parenting time
(e.g. 51%-49%). It then seeks to take the
holding/ruling in Burgess, as to the burden of
proof, and broaden it to such a degree that it
cannot be met by any non-moving parent.
If Burgess states the policy and intent of the
Legislature - as it stands, then there is no
basis for trying to expand upon the Burgess
holding to the extreme degree this legislation
does, nor to try to abrogate the La Musga ruling
that does affirm Burgess with some reasonable
clarification.
We strongly oppose this draft legislation and
each provision thereof.
Sincerely,
BARTHOLOMEW, WASZNICKY &MOLINARO LLP
DIANE E. WASZNICKY
DEW/ks
July 9, 2004
VIA FAX AND U.S.
MAIL
The Honorable
John Burton
State Capitol
Room 205
Sacramento, California 95814
Re:
Proposed Anti- LaMusga Legislation, Bill Number
Unknown
-- OPPOSE --
Dear Senator
Burton:
On behalf of the
Family Law Section of the Los Angeles County Bar
Association and our nearly 1,100 Section
members, representing the largest active
practicing Family Law bar in California, we have
been authorized to express to you our concerns
regarding the expedited passage of a “stealth”
bill to abrogate the holding in In re
Marriage of LaMusga
without the full-blown consideration and debate
that the subject matter of the bill should
require.
We thank you for
this opportunity to be heard.
The move-away
cases are among the most difficult and
heart-wrenching of all family law cases. While
we would all like to have easy answers to solve
difficult problems, unfortunately, where the
best interests of children are concerned, there
are no easy answers. It is our understanding
that the LaMusga opinion specifically
affirmed and upheld the Marriage of Burgess
decision, while at the same time clarifying it
and adding dimension to it by providing more
analysis as to what the family law judiciary
should consider in making these painful
decisions.
Also, the
legislature has worked over the past several
decades to make the family law statutes gender
neutral. We perceive that the impetus behind
your bill are groups who want the law to favor
mothers over fathers. Also, as a July 5, 2004,
article in the Los Angeles Times by
Jordan Rau observed, there appears to be a trend
in Sacramento to “legislate by anecdote.” We
believe that rushing a bill through
surreptitiously without healthy debate and
considerable deliberation in reaction to the
LaMusga case is not the right approach. Our
Supreme Court wrote a very thoughtful and
balanced opinion. We do not think their wise
counsel should be repudiated in haste in a
one-sided and extreme bill. Each move-away case
is unique with different facts. They require
the upmost of judicial discretion, rather than
less.
We ask that this
bill go through the usual procedures for
legislation and not be tacked on or placed into
an existing but “gutted” bill in order to enable
it to be passed without open debate and
deliberation.
We would be more
than willing to cooperatively work with you in
aid of our mutually desired goal of enlightened,
effective and fair Family Law legislation, and
your consideration and interest in Family Law is
sincerely appreciated.
Thank you.
Very truly yours,
LYNETTE BERG ROBE
Co-Chair, Legislation Committee
Family Law Section
Los Angeles County Bar Association
MELVYN JAY ROSS
Co-Chair, Legislation Committee
Family Law Section
Los Angeles County Bar Association
cc:
Senator Martha M.
Escutia (Chair, Senate Judiciary Comm.)
Gene Wong (Chief Counsel-Senate Judiciary
Committee)
Assemblyperson Ellen M. Corbett (Chair, Assembly
Judiciary Comm.)
Drew R. Liebert (Chief Counsel-Assembly Jud.
Comm.)
Larry Doyle (Chief Legislative Counsel-State Bar
of California)
Karen Parnk (Deputy Leg. Chair, Office of the
Governor)
Judge Aviva K. Bobb (Supervising Judge,
Department 2)
Judge Roy L. Paul
Commissioner John Chemeleski
Commissioner Ann Dobbs
Commissioner Reva G. Goetz
Dianna Gould-Saltman, Esq. (Chair, Ex. Committee
of Family Law Section, LACBA)
Leonard J. Meyberg, Jr. (Chair-Elect, Ex. Comm.,
Family Law Section, LACBA)
The Honorable John Burton
State Capitol, Room 205
Sacramento, California 95814
ATTN: Anthony Williams
Phone (916) 445-1412
Fax (916) 445-8356
Dear Mr. Williams:
The following is a letter that I have sent to
the members of the Senate opposing this bill. I
am particularly disturbed that it appears that
an attempt is being made to sneak this through
the Legislature without the opportunity for
public input or debate.
I am afraid that Sen. Burton is under the
opinion that something terrible was done the
Supreme Court in LaMusga because it held that
children are not chattel. Their best interests
need to be considered. Usually that will be
served by moving with the primary caretaker --
but not always.
You need to understand that the supporters of
this legislation who have Sen. Burton's ear do
not want a mothers to have a presumptive right
to move -- they demand an absolute right to move
-- regardless of the effect that the move may
have on the children or on their relationship
with the other parent.
This bill would accomplish that.
Marriage of LaMusga is probably the most popular
family law decision rendered by the Supreme
Court, perhaps ever. I would think that the
Legislature would want to hear from a wide group
of mental health professionals, judges and
family law attorneys before abrogating to serve
the will of a vocal, extreme minority.
Very truly yours,
Garrett C. Dailey
Dear Senator:
I write to ask you to oppose Senator Burton's
precipitous attempts to amend Fam. Code §7501 to
abrogate the recent Supreme Court decision in In
re Marriage of LaMusga, one of the most popular
decisions handed down by a California Court in
decades. I travel around the state lecturing to
family law attorneys, judges and mental health
professionals and can attest to the fact that I
have yet to talk to one that does not support
the decision. The reason is simple - it permits
courts to restrain a proposed move that will be
harmful to children. Before LaMusga, there was a
perception that unless the noncustodial parent
could show that the move was being made in bad
faith, an almost impossible burden to meet, the
court was powerless to consider the effect that
the move would have on the children affected by
it.
In a case that I just completed, the mother
wanted to take her 12-year-old daughter out of a
special school in Marin County that was
successfully dealing with the child's learning
disabilities and move her to Costa Rica because
her retired, disabled husband of one-month
wanted to return to his homeland which he had
left 58 years before. Neither were employed and
the proposed move was purely one of convenience.
The child did not speak Spanish and did not want
to move. An expert psychologist testified that
such a move at this time would have devastating
life-long consequences to the child. The mother
refused to accept that the move would have any
adverse effect and insisted on moving
immediately. The mother's request was
temporarily delayed and the Court of Appeal
affirmed because of LaMusga. If LaMusga is
legislatively overturned, trial courts will no
longer have the power to consider what is in the
best interests of children and will be forced to
rubber-stamp move-away requests, no matter how
short-sighted, precipitous, or calamitous for
the children.
The supporters behind Senator's Burton's efforts
are an extreme minority of mother's rights
advocates whose views do not represent
mainstream psychological family law thought.
They base their position on psychological
research that touts the overriding importance of
maintaining a child's relationship with one
primary parent. This research is thirty years
old and has long since been discredited by more
recent and thorough research that shows that
children of divorced parents who have two
primary parents in their lives do better in
school, are better adjusted and happier than
children raised by only one primary parent. The
Supreme Court had the benefit of amici briefs
representing both views and came down in favor
of recognizing children's needs for two parents.
The proposed bill is based on a series of
misrepresentations as to what the LaMusga
decision held:
... It did not overrule Burgess.
... It did not judicially repeal Fam. Code
§7501.
... It acknowledged the importance of the
relationship between the primary caregiver and
the child.
... It strongly reaffirmed custodial parents'
presumptive right to move away with children.
... It put the burden to show detriment on the
noncustodial parent.
... It does not reward parents for poor
relationships with each other or with their
children - in fact it does just the opposite.
... It reaffirmed that the lodestar must be what
is in the best interests of children.
The bill proffered by Senator Burton will have a
devastating effect on children in many ways. It
will have the effect of mandating a full-blown
custody battle at the beginning of virtually
every case. Unless someone is designated the
"custodial parent" in the original order, s/he
will be powerless to stop any move-away -
regardless of the detriment that it may cause
the child. Under LaMusga, this is not required
as the court can look to see if there will be
detriment from the proposed move and then act
appropriately.
In short, LaMusga is a child-centered opinion.
The views advocated by those who support Senator
Burton's bill elevate the rights of mothers
above those of their children. California has
long held that the primary factor in making
custody decisions is the best interests of the
children. Senator Burton's bill seeks to make
that secondary to the best interests of one of
the parents. Is that to be the Legislative
policy of the state?
I ask you to oppose this bill or, at least to
ensure that it is fully vetted by the committee
process where the Legislature can have the
benefits of the views of experts on both sides
of this issue. As I understand that Senator
Burton is attempting to use his position to
bypass this process, I would ask that you demand
that something as crucial as the welfare of
California's children be given the careful
consideration that it deserves.
Thank you for your consideration.
Very truly yours,
Garrett C. Dailey
Dear Assembly Judiciary
Committee:
I write in opposition to Senator John Burton's
amendments to SB 730 (a labor bill) that would
tie the hands of family court judges to consider
children's best interests in cases where a
parent wishes to move. Every case is different.
It is critical that judges have the power to
consider the unique needs and situation of each
child. California should consider emulating the
child-centered move-away statute that the
Colorado legislature adopted at the urging of
its mental health professionals and family
lawyers a few years back.
I am a child custody lawyer (26 years) who
represents men, women and children in about
equal numbers.
I was the author of one of the amicus briefs in
the California Supreme Court (Marriage of
LaMusga) that influenced the Court to protect
the power of family court judges to make case by
case decisions in moveaways. The Association of
Certified Family Law Specialists and numerous
mental health experts, researchers and child
custody lawyers joined that brief. This bill
would reverse the child-centered decision that
resulted from that case. It would have a
devastating impact on California’s children by
elevating parents' rights over children's needs.
You can read my brief at
www.atybriefcase.com.
No hearings have been conducted on this bill.
There is widespread concern about it throughout
the family law community. It is opposed by the
State Bar of California Family Law Section, the
Association of Family Law Specialists, and the
Los Angeles County Bar Association Family Law
Section, as well as the vast majority of family
lawyers and mental health professionals who do
this work. It would be unconscionable for the
Legislature to enact this bill without adequate
hearings and leg counsel reports.
Finally, a story to put a face on the problem. I
represent lots of parents and kids in move-away
cases -- both advocating and opposing moves.
Often the move is in the child's best interests.
Sometimes the child's best interests require a
change of custody when one parent is moving. In
one of my cases, involving a seriously disabled
child, the court-appointed psychiatrist opines
that that move would be devastating and have
long term adverse consequences for the child's
development and well-being. Under Sen. Burton's
bill, the trial judge would not have the power
to follow the psychiatrist's recommendations.
Thank you for taking the time to consider this
letter, and to think deeply about the unintended
adverse consequences that this well-intended but
misguided "one size fits all" approach to the
complex needs of children would have on many
thousands of families.
Sincerely,
Leslie Ellen Shear
Certified Family Law Specialist
Encino, CA
To Whom it May Concern:
There is a Burton bill pending that has been
drafted to overturn the LaMusga opinion.
It is a comprehensive bill that it shifts the
burden to the parent restricting the move away,
forecloses using the affect of the move to show
detriment to the child, and provides a
presumption allowing a move and disallowing a
best interest test. The author's office is not
sharing the proposed bill and will not disclose
when or where it will show up. We expect that
they are looking for a bill that has already
gone through committee and will gut and amend it
with this new bill to shorten the review
process. We are looking for help in a quick
response and strong opposition to this bill.
Opposition should be directed to the Senate and
Assembly Judiciary Committees and the Governor's
office.
Sincerely,
Peter M. Walzer
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