Letters for the week of April 21-27, 2004

Don't tell us how The Alamo ends! Plus, readers weigh in on the rights of men, women, and children in move-away divorce cases.

“Messin’ with Texas,” Film, 4/7

Forgot the Alamo
Please fire Mr. Wilonsky. It seems that he almost cannot write a review of a movie without Giving Away the Ending.

Short of firing him, please edit his reviews so that moviegoers will be allowed the pleasure of learning a movie’s twists In the Theater. Short of editing his work, please direct Mr. Wilonsky to proof his own work before submitting it. Quote: “Truth really be told, there is nothing new here.” Quote: “Every film made about the fall of the Alamo ends with the slaughter. … Not this time. … An Alamo with a happy ending — now, that is revolutionary.” I don’t know. Is the market for movie critics really that slim? If so, get this guy under a tighter grip, and give us some reviews that follow a few basic guidelines.
John Ferguson, Houston, Texas

“Should She Stay or Should She Go?” Feature, 3/31

Kids’ needs are paramount
Writer Will Harper should be commended for addressing the complex issue of “move-aways” — whether the primary custodial parent should have the right to relocate and take the children to live distant from the other parent following a divorce/separation. He does a good job of illuminating the tensions from the two parents’ perspectives. To the extent his article gives short shrift to the children’s perspective, he is not alone, for recent changes in the law do the same.

The trend toward allowing moves by custodial parents is not just a pronouncement about “mothers’ rights” or “fathers’ rights,” it is a move AWAY from focusing on what was a longstanding body of law which required examining what outcome serves the children’s best interests. That well-settled precedent is eviscerated by the Burgess case and its progeny as well as by new legislation, which makes it easier for custodial parents to relocate.

When relationships between parents fail, children — unlike parents — normally have no representation in court where their future family arrangements are formulated. In the past, laws pertaining to moves by custodial parents at least factored in the children’s best interests as a matter to be considered by courts. The new laws, with limited exceptions, strip courts of the discretion to place children’s needs and best interests at the fore.

As an attorney who has practiced family law for more than eighteen years and represented mothers and fathers on both sides of move-away cases, I find abandoning the focus on children’s best interests in favor of a move toward creating a presumptive right for custodial parents to move to be a very troubling trend. Proponents of custodial parents’ rights to relocate with children view their work as progressive and as advancing feminist rights, as custodial parents are more likely to be mothers. Yet ignoring children’s best interests spells a major setback, relegating them to the status of chattel — a status which took centuries to overcome. It is difficult to see how treating children’s needs as a lesser consideration than their parents’ career and lifestyle ambitions is progressive.

Relegating children’s best interests to the backseat to advance women’s quest for gender equality does a disservice to children and to women. Rather than ignore children’s needs, we should be calling upon both parents to equally share the burdens and joys of parenting. That necessitates continuing the struggle for wage parity and calling upon employers — from trade unions to corporations — to create working conditions that allow workers to meaningfully participate in their families. The tradesperson whose workday begins at 6:00 a.m. will find meaningful custody options as limited as the corporate executive who is expected to work until 8 p.m. We need to call into question a society that finds a luxury swimming pool, material acquisitions, and financial advancement more important than the needs of children who stand without weapons and voices in this bitter battle.

The LaMusga case, like many family law cases, presents a complex history about which reasonable observers may disagree as to whether the right result was reached. What should not be overlooked, however, is that so long as judges are stripped of discretion to consider children’s best interests and children have no voice in this difficult question, we run the risk of implementing social policies that trample their needs. Such an outcome may be expedient in the short run, but it is not progressive, nor does it hold promise for affirming important societal values (such as the continuity of human relationships and the elevation of emotional needs over financial advancement) in the long run.
Mary McNeill, Berkeley

Mothers are moving
What? Did you run out of things to write about? I find it very offensive when a story gets blown up to sensationalize an issue that is common among a majority of people today.

Hello? Gary LaMusga and his ex-wife are not the only couple to go through the horrific experience of divorce. Most single parents (which, by the way, is not by choice) have had conflicts with their children’s father and have had to make the decision to move to maintain a healthy emotional environment for their children. We’re lucky if we get as much as $4,500 for child support and alimony, let alone money for attorney’s fees.

Sounds like babymama drama to me.
Jenny Joseph, Oakland

Fathers are forever
The chief justices may be wise to remember that while things change, life begins and ends with family. If Suzy’s new relationship ends, so does the continuity and presence of a male figure in the boys’ developing lives. In contrast, the boys’ relationship with Dad is durable and has permanence. If the state of California wants to serve the best interest of the children, then the relationships with both parents should be protected, especially if you have two parents wanting to participate in the children’s lives.

Doug Crook, Moraga

Both parents are best
The frustration I felt when reading the article hit home for me. This is a simple question made complicated by lawyers and expert witnesses, etc. to keep you from asking the real question here. The question is not: Should these kids be with mom or dad? The question really is: Is it better for these kids to move away so they have a slightly better lifestyle with their mother in Arizona, or is it better for them to stay and have a relationship with their father? I noticed how the lawyers and expert witnesses omitted the essence of the real question here. Pleasanton isn’t a bad neighborhood at all, and obviously the kids would be better off with both parents — even if their time with their mom isn’t in a big, new house.

Isn’t it telling how the move-aways quickly figure out how to stay put when they lose their case to move away?
Brian Mcginnis, Alamo

Court is not the answer
The California Family Code section on getting married is six to eight pages long, whereas the laws on getting divorced are over two hundred pages in my old Matthew Bender Standard California Codes book. The lawyer’s bible for executing divorces, California Family Law Practice and Pleadings, which summarizes and interprets the divorce codes and case law, is six volumes.

Most dads, perhaps 80 percent or more, are happy to walk away from their children with minimal or no visitation. Some supposedly “negligent” dads who were primarily focused on earning money during their marriages become great dads post-divorce when their family structure changes. Some mothers’ entire lives center around being a full-time parent and they have difficulty adjusting to share the role of primary parent and decision maker. This loss of a “mother knows best” identity sometimes leads to polarized accusations. These accusations can often lead to counteraccusations which can cause the case to blow up in a way that can never get resolved in an adversarial setting. Unfortunately, all of this makes it difficult for the maybe 10 to 15 percent of the dads who want extensive or equal participation in raising their children.

I think joint custody is the best for everybody concerned when it works. The kids have two active parents to support and encourage them. The parents can focus their attention on the kids when they have physical custody, and can also have an independent personal and professional life when the kids are with the other parent.

Legally, property settlement, child and spousal support, and custody-visitation issues are supposed to be totally separate, nonoverlapping issues. In real life, these issues are often used by parties and lawyers as bargaining chips to offset each other. Minor differences can easily expand into major conflicts and the children often fall through the cracks. The LaMusga-Navarro case cost more than $100,000 in the first couple of years, long before the appeals started. I know of quite a few cases in this price range and higher, and this does not include the often-greater personal cost in time and personal anguish.

Most divorce matters are handled in short hearings with perhaps fifteen to twenty cases heard in a morning, allowing less than ten minutes to each case. Many attorneys delay any negotiating until they are in the halls outside the courtroom just before the hearing. Your attorney knows perhaps only 10 percent of your family’s history; perhaps 10 percent of this gets summarized in the moving papers and oral arguments made by the attorney to the court. If the parties and the attorneys cannot work out an agreement, then the judge will make a decision about your life, your assets, and your and your children’s future, based on what he knows, which is often just 1 percent of your family history.

Lawyers get well-trained in splitting legal hairs. But lawyers usually know little to nothing about therapy, the psychology and sociology of kids and families, the impact of divorce on kids, or accounting and finances. Judges become judges by being competent attorneys and/or being politically active, not for their skills in other areas. As the article mentions, family court judges are often the least experienced judges around.

The legal system may work well for corporations that can afford extensive discovery processes and long trials, and perhaps reasonably well for criminal processes. The formal, expensive, adversarial process does not work very well for divorces. I think the older tribal approach often worked better. A group of elders who knew the history and context of both parties would sit down and make a knowledgeable decision before positions got hardened. Their wisdom and community support would prevent problems from getting out of control. A more modern version of this would be to have eight or ten family members and friends develop a creative divorce plan for the couple involved.

The best arrangement I have seen is where an attorney and psychologist (of different gender) worked together as mediators and facilitators with the divorcing couple. In this setting, typical impasses can usually be worked through in a nonadversarial process and the law and legal procedures can be used as a guide rather than a stumbling block.
Osman Vincent, Berkeley

Jim Ludtke 1954-2004

Jim Ludtke, former art director of the Express, died on March 25 at his home in Los Angeles at the age of fifty. Jim worked for the Express in the mid-1980s and went on to make a name for himself as an editorial and commercial illustrator (New York Times, MacWorld, Absolut, Nintendo) and as a pioneer of computer graphics and 3-D animation – especially his work with the SF band the Residents on such CD-ROMs as Freak Show and Bad Day on the Midway. The Express extends condolences to Jim’s family.

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