“My wife is going for sole custody of our two children. I’m afraid she is going to take them and move to New York State, where she has family. What can I do?”
In San Diego we continuously see “move-away” issues due to the high population of military families, corporate moves, and the economics of real estate.
The condition of “attachment” has been defined as a secure relationship between a child and one or both parents who provide the nurturing, affection, and necessities of life. Attachment is believed to be critical to human development. A child with two secure parental relationships would be most resilient to stressors. Studies show that children who are securely attached are able to stay engaged in play for longer periods; they showed more intense interest in toys, attention to detail, concern for others, and they are more competent socially. There is no presumption that a child will automatically be attached primarily to the mother and not the father, although many fathers might feel that bias.
Stability and security are two other watch-words of the foundation for custodial placement. The social scientists promote stability to preserve attachment. A string of California Supreme Court decisions, beginning in 1979 with Marriage of Carney 24 Cal.3d 725, reflects the acceptance of Attachment Theory and Stability in California Family Law. InCarney, the father had physically cared for two young boys after the separation for a period of about five years. The father was without question the primary parent and the primary attachment for the children. Then, in an accident, Mr. Carney became a quadriplegic. It seemed to be common sense to the trial court to think that the mother could better provide and that they should change the custody to her. She also wanted to move to the State of New York. But the Supreme Court ordered the return of the children to the father, reasoning that the essence of parenting “lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond.”
About six years later, the California Supreme Court in Burchard v. Garay (1986) 42 Cal.3d 531 reviewed the subject again. In Burchard, the court found attachment and stability to be more important in the life of a child than the relative economics of a wealthy parent versus a parent who had no income or property. In 1995, the Supreme Court issued the landmark opinion of Marriage of Burgess (1996) 13 Cal. 4th 25. Here the court clarified an area on the move-away issue where some of the courts had become divided: The custodial parent has the right to determine the residence of the child. The reason need only be “sound” and in “good faith.” The decision supported Family Code Section 7501, which clearly stated that the custodial parent has the right to choose the residence of the child.
This line of reasoning or policy following the Attachment Theory; recognizing the value of stability in parent-child relationships continued in two more important decisions in the past few years, Montenegro v. Diaz (2001) 26 Cal.4th 249 and LaMusga (2004) 32 Cal.4th 1072, which collectively give the trial court the ability to look at all the facts and circumstances behind a proposed move-away while holding that once custodial placement is made as a final decision, a parent should not expect to switch that placement without some very powerful facts regarding the welfare of the child.
In sum, a parent faced with imminent breakdown of the family will probably not in the course of a few weeks or a few months be able to change the patterns of attachment with the children that have taken years to develop. But a parent may certainly contribute their best in time and attention to the children to preserve the role they have as a source of nurture, affection, and the necessities in the lives of the children.
James D. Scott is the founder and principal of The Law Offices of James D. Scott in San Diego. A Board Certified Family Law Specialist, he focuses on complex contested cases and also provides marital mediation to his clients.