Should She Stay or Should She Go? Court Says Stay

High court rules for dad in the LaMusga custody case.


In a recent decision hailed as a victory for divorced dads, the California Supreme Court upheld a lower-court ruling that an Alamo father should get custody of his two sons if his ex-wife moved to Ohio. The ruling strengthens the legal hand of noncustodial parents, usually dads, who argue in divorce court that letting one parent move far away with the kids harms the children because it hurts their relationships with the remaining parent.

In 2001, Suzy Navarro asked Contra Costa County Superior Court Judge Terence Bruiniers for permission to move to Ohio, where her new husband had gotten a better-paying job. But Navarro’s ex-husband, financial services broker Gary LaMusga, objected, saying the move would ruin his fragile bond with his two sons, who are now ten and twelve. Judge Bruiniers agreed. But Navarro won a reversal in the court of appeals. The panel cited a 1996 state Supreme Court decision that custodial parents, usually mothers, had a “presumptive right” to move away with the kids because of the importance of maintaining continuity of care.

But in its April 29 decision, a 6-1 majority on the top court agreed with LaMusga’s attorney, Garrett Dailey, who argued that a “presumptive right” was not an “absolute right,” and that trial court judges should have discretion in determining what is ultimately in the children’s best interests. “The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all the relevant factors, may be sufficient to justify a change in custody,” Justice Carlos Moreno wrote for the majority.

The LaMusga case was watched closely by family court judges and lawyers, as well as by feminists and fathers’ rights groups. Feminist lawyers have argued that mothers often flee expensive places like the Bay Area out of fiscal necessity. Navarro’s trial lawyer, Kim Robinson, has complained about a double standard that lets dads without custody pick up and move when they want.

While the decision will affect generations of broken families to come, it likely won’t affect the LaMusgas. As everyone waited for the Supreme Court to hear the case, Susan Navarro ditched her Ohio plans and instead relocated to Arizona with the boys and her new husband last July. Another trial court judge gave the move his temporary blessing pending the Supreme Court’s decision. The high court will be sending the case back to the local court to make a final custody determination based on present circumstances. But by the time it gets heard, the two boys — who have said they want to live with their mom — will have been settled in Arizona for about a year.

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