Should She Stay or Should She Go?

A bitter East Bay divorce has sparked a legal gender war, with huge ramifications for custodial parents who want to move their kids out of state.

Gary LaMusga stands outside the California Supreme Court in Sacramento, trying to hold back tears. The justices have just heard his attorney, Garrett Dailey, argue why Gary’s ex-wife, Susan, should not be allowed to take the East Bay family’s two children with her to another state. When a reporter asks LaMusga (pronounced “la-moo-shay”) why he has taken the case all the way to the Supreme Court, his eyelids flicker. “Because I love my children,” he explains. “I’ve had to do everything I could to have a relationship with my sons.”

Susan — who prefers Suzy, and uses her new husband’s last name, Navarro — heads out of the courthouse at the same time as Dr. Judith Wallerstein, a prominent Marin County psychologist known for her groundbreaking work on the effect of divorce on children. Wallerstein’s research is widely credited — or blamed — for influencing earlier state Supreme Court decisions in landmark custody battles. Before today, Suzy had never met the academic, though Wallerstein and other researchers filed a brief on her behalf recommending Suzy should be allowed to keep custody of the kids and move away with them if she wished.

Wallerstein isn’t the only bigwig weighing in on the LaMusga case. The fate of Gary, Suzy, and their sons has become the topic of debate among family law attorneys, fathers’ rightists and feminists, and prominent social scientists with dueling theories. The court battle even spawned a curious piece of legislation last year endorsing an earlier Supreme Court decision. The bill was carried by state Senate President Pro Tem John Burton and signed by Gray Davis in his final months as governor. And the case itself has become synonymous with what family-court experts call “move-aways,” a harsh by-product of an increasingly mobile society with a 50 percent divorce rate.

LaMusga is pretty typical of move-away cases: The parent with custody wants to relocate far from the other parent, ostensibly for financial reasons. Because the custodial parents are usually moms, and dads usually get left behind, the issue of how the courts should treat such cases has pitted feminists against fathers’ rights groups. To the latter, Gary exemplifies their claim that family court judges unfairly favor moms in custody battles. To women’s rights groups, Suzy symbolizes how the courts are, in the words of one San Francisco attorney, holding mothers “hostage to the location” of the father.

Neither Gary nor Suzy are entirely comfortable being treated as symbolic celebrities by their respective supporters. In fact, both play down gender in their feud. “It’s not a male/female issue,” Gary says, noting that there are also moms out there in his position. Suzy doesn’t think of herself as a feminist. Perhaps unwittingly proving her point, she says, “I’m just an average Joe.”

This, however, is no longer your average case. The Supreme Court’s decision in LaMusga, due within the next forty days, will potentially affect generations of feuding parents fighting over their kids in California divorce courts. But at this point, in all likelihood, it won’t have any effect on one broken family — the LaMusgas.

Within the first year of filing for divorce, Suzy racked up $59,000 in attorney’s fees, which forced her to file for bankruptcy; Gary ran up a $41,000 tab over three years. No one can seem to pinpoint how the LaMusga divorce got so nasty in the first place. It seems odd that things would so escalate between two people who outside the courtroom come across as kind, modest human beings.

Gary is a devout Christian: On the morning of the Supreme Court hearing, he says, the first thing he did was get down on his knees and pray. The 51-year-old businessman has a light touch with people that quickly fades when the issue of his divorce comes up. One moment he’s bantering with strangers outside the courtroom; the next he’s breaking into tears as he recollects his seven-year fight over his sons.

Gary grew up in the small California town of Oroville. His own dad, he says, was a constant presence in his life, coaching Gary’s Little League teams, leading his Boy Scout troop (Gary eventually became an Eagle Scout), and taking him to church, where he was an altar boy for eight years.

Suzy, now 44, grew up in Ohio, the youngest of eight. She’d gotten a college degree in finance in 1982 and had wanted to get a master’s degree, but didn’t have the money. She wound up working as a flight attendant for Continental Airlines. Through this whole divorce process, Suzy says, she has tried to check herself and examine her actions — is she doing anything out of spite for Gary? She has read the literature showing that cooperative divorces are better for the kids. But, well, not all divorced couples are so lucky. “Some divorces just don’t go amiably,” she says. Like Gary, Suzy says she just wants what’s best for her kids, although they obviously have different notions of what that means.

She and Gary were in love once, of course. They met in 1988, when Suzy’s sister set them up on a blind date. They hit it off, and tied the knot six months later. When it came time to start a family, Suzy quit her job to stay at home with the children. According to Suzy, both she and Gary wanted it that way. She gave birth to the couple’s first son, Garrett, in 1992. Their second son, Devlen, was born two years later to the day.

Like any other couple, the LaMusgas had problems, but their marriage finally unraveled for good in 1996, according to divorce court records, as the boys’ double birthday party approached. Suzy didn’t want Gary’s troubled sixteen-year-old daughter from his first marriage to attend. Gary, however, had told his daughter she could come. The couple got into a shouting match that ended with Suzy pounding the back of Gary’s head with her fists, as Gary told the story in early court filings. Two months later, in July 1996, he moved out of their Danville home.

Suzy, Gary says, wouldn’t let him see the boys for three or four weeks after he moved out — until a court evaluator required her to let him visit them for a few hours one day. But Gary wanted more than just visitation privileges; he wanted joint custody of his sons. Suzy wanted sole custody and argued in court that she deserved it more than her ex, whom she criticized as an absentee father who worked ten-hour days and drank too much. If her husband wasn’t working overtime on his brokerage business, he was schmoozing at the Rotary Club trying to promote it. She boasted that Garrett, her eldest, had spent only one night out of her care — the night she gave birth to Devlen. “The boys,” Suzy told the court, “look to me for continuity, consistency, and constancy in their lives.”

As it turned out, not only did Suzy want sole custody, she wanted to pack up with the kids and move to Cleveland, where she’d been accepted to law school. Gary, of course, objected. “They were very young,” he says now, “and they would only know me as some individual; they wouldn’t know me as their father.”

The judge brought in a custody evaluator, psychologist Philip Stahl, to assess the situation. Family court judges rely heavily on the recommendations of experts like Stahl. After finishing his interviews, he concluded that the boys were too young — Garrett was four, Devlen was two — to have established an attachment to their dad that could withstand a cross-country move. Stahl said the boys would need more time near their dad.

So Suzy was stuck in the high-priced East Bay, living on $2,250 a month in child support and another $2,250 in alimony, which she no longer receives. Gary, meanwhile, didn’t get the joint custody he wanted. He was allowed to see the boys Tuesdays and Wednesdays from 4:00 to 7:30 p.m., and every other weekend.

No one was happy.

After the split, Suzy started sending the kids to see a therapist. Suzy wanted Gary to attend the sessions, but he refused, fearing the therapist would be “in the position of becoming an adverse witness” in future custody proceedings.

Suzy said the boys’ relationship with their dad steadily deteriorated over the next few years. She said they regularly complained about visiting Gary, because, for instance, he’d make them sleep on the floor. And the boys also felt their new stepmother didn’t like them and was mean — both parents by now had remarried. Another gripe of the kids, Suzy told the court, was that Gary and his new wife, Karin, walked around the house nude.

Gary couldn’t deny he had a bumpy relationship with his sons. Examples sadly abounded. When Garrett did a genealogy report showing his family tree for class, he listed his stepfather, Todd, as his father. And on the morning of Garrett’s first Holy Communion, the boy called his dad and asked for him not to be a part of the ceremony, although he would allow Gary to watch. The mention of that phone call even now brings LaMusga to tears. “That hit me hard,” he says.

Gary blamed his ex-wife for turning his sons against him, engaging in what shrinks refer to as “parental alienation.” Gary wanted more time with his sons, but Suzy resisted, he said. He’d even begun volunteering as a teacher’s aide in both of his sons’ classes in order to spend more time with them. Gary’s attorney later alleged that Suzy asked one teacher to log the hours her ex spent in the classroom so she could deduct it from his regular visitation hours.

Maureen Henry, the kindergarten teacher at Valley Christian, the private school Garrett attended, chimed in on Gary’s behalf in court. She said that the first day back from Christmas vacation in 1999, Garrett told her, “My dad’s mean. He yells all the time. He lies in court. He and my mom have been yelling at each other since I was two.” The teacher asked Garrett how he knew his dad lied in court. According to the teacher, the boy said his mom told him so.

Suzy adamantly denies turning the boys against their father. If anything, she says, she’d given Gary more time with Garrett and Devlen than the court required. When Garrett had put Todd down as his father for his school report, Suzy says she lectured her son: “‘Todd is not your father. Your dad is your father and you really should put his name in that space.'” She says she also scolded Garrett for excluding Gary from participating in his first Communion, and Gary, she claimed, had thanked her for her support. She also takes issue with the teacher’s claim that she had tried to use Gary’s volunteer time against him. “That was a bold-faced lie,” Suzy now says. “The teacher lied and Gary lied.”

Nearly five years after the LaMusgas split up for good, Suzy’s new husband, Todd, got a job offer he couldn’t pass up. A Toyota dealership in Cleveland was offering him a lot more money than he was making in Hayward to create and develop its Internet sales department. By now, Suzy figured Gary had had time to cement his relationship with his sons as the custody evaluator had recommended, and so she sought the court’s permission to move to Ohio.

Gary, however, wasn’t going to let his sons go without a fight. He feared he’d lose them forever if they moved cross-country. And, as far as he was concerned, she’d been responsible for his rocky relationship with the boys.

The decision fell to Terence Bruiniers, a judge on the Contra Costa Superior Court. Bruiniers wasn’t the original judge in the divorce — he hadn’t even been a judge when the case began. A former prosecutor, he was appointed to the bench in 1998 by Pete Wilson during Wilson’s final year as governor. Rookie judges regularly draw the dreaded family law assignment, allowing more senior judges to cherry-pick the more attractive assignments.

But the court psychologist was still around, and Judge Bruiniers asked Dr. Stahl for another evaluation. Stahl, who’d written a book on parental alienation, testified that he didn’t think Suzy was purposefully alienating Gary from their children. However, according to Gary’s attorney, Stahl did say Suzy was “unconsciously” doing so, and as a result the boys viewed their dad as all bad and their mom as all good. Stahl concluded there were “no good choices” regarding the proposed move.

Bruiniers decided that Suzy had a legitimate reason to move and wasn’t asking to do so in “bad faith,” that is, for the sole purpose of getting her sons away from their father. Still, he felt the primary issue was to try and fix “what is now a tenuous and somewhat detached relationship with the boys and their father.”

Thus, in a situation with “no good choices,” Bruiniers chose an option that even Gary hadn’t asked for. Suzy could move to Cleveland, he decided, but not with the kids. If she moved, the judge said, she’d have to turn over primary custody to Gary, who had requested a fifty-fifty split.

“There’s no way,” Suzy recalls telling the judge. “I’m not leaving without my children.”

In 1996 the California Supreme Court made a decision that was supposed to resolve any future move-away disputes. The case, which involved a Southern California couple named Burgess, pitted feminists against fathers’ rightists and moms against dads up and down the state.

Wendy Burgess — whose case was handled free of charge by celebrity lawyer Gloria Allred — had primary custody of her two children and wanted to move them forty miles from Tehachapi to Lancaster, which was near her new job. Her ex- husband Paul objected, arguing that the move would disrupt his visitation schedule.

The upshot of the high court’s ruling was that the parent with primary custody — the “custodial parent” — has a “presumptive right” to move away with the kids, absent a showing of bad faith or that the move would harm the children. Under a strict mom-friendly reading of Burgess, Suzy Navarro should have been able to take Garrett and Devlen to Ohio.

San Francisco attorney Joanne Schulman, who coauthored an advisory brief in the LaMusga case and is a board member of California Women Lawyers, claims numerous Bay Area judges are fathers’ rights advocates who, she feels, ignore the law and instead rule from the hip. “There is a conspiracy among Bay Area judges,” she says, “to get around Burgess.”

Suzy’s attorney, Kim Robinson, assails Contra Costa County — where LaMusga originated — as one of the worst offenders. Robinson says she is currently appealing two decisions by Superior Court Judge Judith Craddick, in which custody of the children was transferred to stay-behind dads.

Judge Bruiniers reasoned that the LaMusga divorce wasn’t truly a Burgess move-away case, in part because the LaMusgas weren’t cooperating in raising their boys. And while he wouldn’t go so far as to accuse Suzy of parental alienation, he did say he felt she “reinforces negative comments that the children make to her” about their dad.

Gary’s appellate attorney, Garrett Dailey, thought Bruiniers made a wise decision within the disputed parameters of the Burgess ruling. While it gives custodial parents the “presumptive” right to move away with the kids, that doesn’t mean they have an absolute right, the lawyer reasons — and if the court thinks allowing such a move would be detrimental to the kids, then it can do what Bruiniers did. The judge explained at the time that because Suzy was “incapable of promoting the relationship” between Gary and his children, a move across country from their father “would inevitably be detrimental to their welfare.”

The First District Court of Appeal, which heard the case in 2002 after Suzy challenged Bruiniers’ decision, disagreed. The panel overturned the order to grant Gary custody if Suzy moved, and scolded Bruiniers for concentrating on the effect the move would have on the father’s relationship with his sons, rather than on what was really best for the children. Because Suzy was moving to Ohio for good-faith reasons, the appeals court ruled, Gary had to show how the move would actually harm the boys — and he didn’t. The kids had in fact told Stahl that they wanted to move to Ohio with their mother and stepfather — a fact not lost on Gary. In a letter to Stahl, Gary recalled for the psychologist something Garrett had told him when the subject of moving came up between father and son: “‘Dad, don’t worry, because I have Todd. ‘”

Not unexpectedly, Gary petitioned the state Supreme Court to hear his case. It seemed unlikely to catch the justices’ attention. To begin with, only 115 of the 9,000 petitions the Supremes receive each year ever get heard. The appeals court didn’t seem to be plowing any new legal ground in its LaMusga ruling — instead, the justices used the 1996 Burgess decision as their guide.

Yet in August of 2002 the Supreme Court agreed to hear LaMusga. Obviously, the justices had more to say on the subject of move-aways.

The news that the high court had taken the case quickly spread among family-law feminists, which meant it got the attention of Bonnie Sloane and her 82-year-old mother, Dorothy Jonas.

Twenty years ago, the mother-daughter team started the Coalition for Family Equity, an alliance of women’s organizations dedicated to protecting the rights of California mothers in court. It was an effort to level the playing field for women battling in family court with their usually better-financed husbands, and it sprang up, in part, as a consequence of feminism’s successes.

One by-product of the movement toward equal rights in the workplace was that fathers began pushing for equal rights in family courts where mothers had enjoyed an advantage in custody disputes for nearly a century. Eventually, women complained they were being screwed over in family court. Sloane, a full-time mom, and Jonas — who was then a member of the state Commission on the Status of Women, as Sloane is now — rallied to their defense to ensure the ex-husbands weren’t cheating them out of things like child support.

The duo didn’t accomplish its goals in courtrooms. Neither of them are practicing attorneys — they’re political animals, and aggressive ones at that. A 1993 Los Angeles Times article described them as having “gained a reputation as effective lobbyists who know how to move bills in a difficult area.”

For a long time now, the two activists have kept a close eye on what they described in 1993 as the “move-away problem.” Jonas says when she heard the Supreme Court was going to revisit the issue, she knew “we needed to get involved.”

Mothers’ advocates view move-aways as a civil rights issue. Attorney Kim Robinson believes that’s so because divorced women, especially in high-priced regions such as the Bay Area, need to move to more affordable places after they divorce their husbands. “Forcing people to stay in the same geographic location, to their financial detriment, is not fair,” she says. She also criticizes fathers’ rights groups and the courts for holding a double standard: While they think that mom should have to stay near dad, no one ever stops the dad — typically the noncustodial parent — from moving away.

Eventually, Jonas and the Coalition for Family Equity persuaded Senate President Pro Tem John Burton to carry a bill they crafted with the group San Francisco Women Lawyers. Senate Bill 156 asserted that the Legislature views the Supreme Court’s decision in Burgess as the law of the state — a less-than- subtle message to the seven justices who had yet to rule on LaMusga. The bill sailed through both houses of the legislature with no formal opposition from fathers’ rights groups, which, according to a legislative staffer, don’t have nearly the same presence as they did five or ten years ago.

Defenders of divorced dads like Gary LaMusga may not have come to the rescue in the Legislature, but they are trying to make a difference in the courtroom. Ever since the Supremes agreed to hear Gary’s appeal, social scientists, psychologists, and academics have come out of the woodwork to offer their theories on what, indeed, is in the “best interests of the children” — the catchphrase at the heart of the rhetorical battle over move-aways. It’s an academic debate that has produced studies with contradictory conclusions depending on the prejudices of the researchers, and has become a part of what some observers call the recent gender war in family law. In crude terms, the dads’ side argues that two parents are better than one, while the moms’ side preaches that mother knows best. Experts on both sides have submitted friend of the court briefs that serve as advisory opinions.

Backing Gary’s arguments were, among others, psychologists Sanford Braver and Richard Warshak, whose feminist critics deride them as fathers’ rights advocates. Five years ago, Braver, a psych professor at Arizona State University, wrote a book called Divorced Dads: Shattering Myths. Warshak, a clinical psychologist in Dallas, is best known for his book The Custody Revolution, which challenges what he calls the “motherhood mystique” and champions the role of fathers.

Their brief in the LaMusga case was ostensibly impartial, but made hay of Braver’s recent study involving 602 college students, 170 of whom “had relocated with one parent more than an hour’s drive away from the other parent.” The study concluded that kids did better when both of their parents lived in the same geographical area. “The outcomes included less hostility, inner turmoil, and divorce-related distress, and better reported global health, all of which predict lower risk of premature mortality,” Braver and Warshak’s brief stated. “The students who did not experience the relocation of a parent regarded their parents more favorably as sources of emotional support and role models.”

The other faction was led by Dr. Judith Wallerstein, who first garnered fame — and controversy — with her 1989 book, Second Chances: Men, Women and Children After a Decade of Divorce. The book was initially championed by conservatives because of Wallerstein’s conclusion that divorce harms children more than anyone ever imagined. She came to her conclusions after tracking 131 kids of divorce from childhood to adulthood. She has fallen out of favor with fathers’ rights groups and academics in recent times for her advocacy on the behalf of children remaining with their custodial parents — usually moms — when they move.

In an interview, the researcher assails the Braver study as deeply flawed. The idea that two biological parents are better than one, she argues, doesn’t work in a hostile divorce situation as in the LaMusgas’ case; being close to parents at war with each other doesn’t help the children. In such a contested case, she reasons, the most important thing for the kids is that they maintain continuity of care by staying with the primary custodial parent. “Divorce by itself is traumatic to children,” Wallerstein says. To separate kids from their primary caretaker, as Judge Bruiniers’ ruling would have done, only increases their trauma, she adds.

While the lobbyists and lawyers, the politicians and academics, argued over what was best for them, life moved on for Gary, Suzy, and their two sons. Not only did it move on, it moved away.

As everyone waited for the Supreme Court to do something, it seemed Suzy and Gary fought more than ever over their kids — even calling the police on each other in May 2003 because of disagreements over who was supposed to have the boys on a given day.

In the first instance, Suzy had wanted Garrett and Devlen home the night before Mother’s Day so they could have the whole day together. Gary tersely replied by fax that he’d return them on the morning of Mother’s Day, as he said the judge had ordered. The day before, Gary took the boys to the Sports and Recreation Community Park in Pleasanton for their Little League baseball games. Afterward, according to Gary’s court declaration, he was in the outfield picking up baseballs when Suzy came and whisked away the kids. He confronted her as she was backing out of her parking spot, saying he didn’t want to “create a scene.” The boys sat quietly in the backseat. Suzy rolled the passenger-side window halfway down so Gary could say something to them. “Boys,” he asked them, according to his court filing, “can you get out of the car?” Suzy interrupted angrily and said, “I thought you were going to say goodbye,” and drove away. Gary called police, who drove with him to Suzy’s Pleasanton home. The Pleasanton cops told Gary they wouldn’t “drag the children” out of the house, but would ask Suzy if she’d turn them over. Suzy refused, according to Gary.

Two weeks later police were involved in another episode about which Gary complained to the local court. He believed he had the boys through the Memorial Day weekend and didn’t have to take them back to Suzy’s house until Tuesday morning.

Suzy, however, said they should come home on Monday. Gary ignored her demand and took the boys to Marine World in Vallejo on Monday. Around noon while walking around the theme park, Gary got a call on his cell phone from a Pleasanton police officer, who told him that his ex-wife had accused him of violating a court order and wanted the kids returned to her. Gary denied any violation and the day passed without anyone being arrested.

But the boys were feeling stressed, too, especially Garrett. One day in class after an indoor recess, his teacher at Mohr Elementary took him out in the hallway after he’d thrown a fit. She asked him what was wrong. The ten-year-old boy reeled off a list of complaints, which the teacher included in a letter to Suzy. Garrett said that he wished things could be normal like when his mom and dad were still together; his dad always yelled at his brother and took their stepsister’s side; all his counselors always said the same thing and no one ever believed him; and that he wanted to move with his mom but his dad wouldn’t let him.

Meanwhile, the younger boy, Devlen, then eight, drew a picture — which Suzy showed the court — showing a dragon outside a castle surrounded by lava. Suzy said Devlen had told her the dragon was his dad and the lava represented his stepmother. They were guarding the castle where Devlen had been locked up.

By now, Suzy had given up on Ohio. Todd quit his job in Cleveland because of the situation at home and returned to the Bay Area, but they were renting a place in Pleasanton that Suzy’s attorney describes as a dump. The couple kept looking for opportunities in more-affordable places. Eventually, another one came along: Todd was offered a job as fleet manager for a Toyota dealership near Phoenix. The Arizona job was even more lucrative than the Ohio one.

In Contra Costa Superior Court, Suzy ditched her request to move to Ohio and now asked the court for permission to go to Arizona with her two sons. After waiting ten months without any indication she’d get a hearing on her new request, Suzy decided she had had enough. Last July she packed up her family and moved without the court’s permission. Her lawyer, Kim Robinson, made the bold but risky argument that Suzy, as the custodial parent, had a presumptive right to move under current law. Robinson announced the move in a press release titled: “After Seven Years of Legal Limbo in California Courts, Family Seeks New Life in Arizona.”

It read: “The children’s father, Gary LaMusga, and many other noncustodial parents believe that children should remain near them, even if their relationships with the children are poor and staying harms the children and custodial households.” The release quoted Suzy as saying: “I’m trying to do what’s best for my children. They are being hurt more than helped by this legal process.” It predicted the move would “cause shock waves in California and across the nation.”

It certainly shocked one person: Gary. He had no idea that his boys were moving 630 miles away until he got a phone call from a local TV reporter asking him to comment on the press release. Gary says he was too dumbfounded to say anything. “I was absolutely devastated,” he recalls.

It’s a desert-hot March morning in Mesa, Arizona, and Suzy Navarro is waiting for the pool guy to call. Life has settled down since she and her family moved. She now has luxury problems like a broken pool to deal with. In the Bay Area, she and Todd could only afford to rent their “dump.” Now they own a house with a pool.

Being away from the Bay Area and Gary, Suzy says, means she is no longer consumed by her court battle. She feels a lot more relaxed nowadays, and the emotional benefits of the move have “trickled down” to the entire household. “The children are doing very well here,” she reports.

Her move to Arizona was a huge gamble, and one that appears to have paid off. At least two other custodial mothers, Suzy’s attorney says, have been arrested for moving away with their kids in defiance of the court since Navarro made her move.

In Suzy’s case, the move forced the local superior court, which had left everyone’s fate in legal limbo as it waited for the Supreme Court to do, well, something. The new judge on the case, John Kennedy, did something his predecessors arguably should have done long ago: He appointed an attorney to represent the boys, a move common in contentious divorces. The children’s lawyer, Leanne Schlegel, recommended to the judge that the boys stay with their mom in Arizona while still seeing their father regularly. Psychologist Stahl was brought back in for a quickie evaluation. This time, he concluded it would be better for the boys to stay with their mom in Arizona than to uproot them again.

Judge Kennedy agreed, and although his order was temporary, it made anything the Supreme Court would do anticlimactic, almost irrelevant, at least as far as the LaMusgas and the Navarros were concerned. By the time the high court finally heard oral arguments last month on whether Suzy should be able to take the kids to Ohio, she and her sons had been living in Arizona for more than six months. Her attorney, Kim Robinson, predicts that the justices’ decision won’t change her client’s current situation: “Practically, I don’t think it will make a difference one way or the other.”

Robinson says she even asked the Supreme Court to dismiss the case as moot. The justices refused, from which Robinson inferred that the Supremes intend to clarify their earlier ruling to avoid any further confusion in the lower courts.

During the February hearing, Justice Joyce L. Kennard asked the most questions and in the process revealed some insight into her thinking. Kennard asked whether it was more disruptive to the two boys to move with mom and leave dad behind, or be taken from mom to stay in the East Bay with dad. Kennard added that it seemed to her Judge Kennedy had used the “correct standard” in deciding to let the boys remain with Suzy in Arizona.

But in what Gary’s lawyer, Garrett Dailey, hoped was a good sign, another justice made the distinction that in the Burgess case, the mother wanted to move only forty miles away — not across the country.

Though the state Supreme Court’s upcoming ruling could in theory force the two boys to move back with their dad, it probably won’t happen. The day before the Supreme Court hearing, Gary told the San Jose Mercury News he wouldn’t make the kids move back even if he won. He declined to elaborate on that quote for this article except to say, “I think I need to wait for the Supreme Court to make its decision and then proceed down the path that’s in the best interests of my children.” He now flies down to visit his sons one weekend a month and says he calls them every other day.

Even if the Supremes ruled in Gary’s favor, Robinson points out, they would send the case back to the Contra Costa trial court to figure out what to do based on current circumstances: Garrett and Devlen are now entrenched in Arizona in new schools, with new friends and new basketball teams.

Wallerstein says that from all the reports she’d heard, the boys are doing very well at school in their new environs. If Judge Kennedy wouldn’t uproot the boys when Suzy first moved, it seems unlikely he’d do so nearly a year later when they have settled in — which is exactly what Gary had feared.

There’s a reason judges dread being assigned to family law court. The stakes and the emotions are high; figuring out what’s best for the most vulnerable parties — the children — is rarely clear-cut, and heroes and villains are in short supply. Mary Ann Mason, a longtime professor of law and social welfare at UC Berkeley, who signed an amicus brief backing Suzy Navarro, says she feels for everyone in this case. “There are no bad people here,” she says. “It’s just a bad situation.”

Perhaps it was Dr. Philip Stahl who said it best, although he was referring to a specific situation: More often than not, in the annals of American family law, there are “no good choices.”

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