Professor Braver suggests that children would be happier and healthier
if we discouraged parents who divorce from relocating. I am not convinced
that this policy would help children. But this is an empirical question
about which I will comment briefly as I conclude.
Professor Braver also offers a glimpse into public opinion, which seems
to favor relocation deterrence, partly on fairness grounds. My main goal
tonight is show why this view is wrong: inhibiting relocation by threatening
to take custody away from the moving parent is not a fair solution.
It might strike you as odd that I mention fairness to parents; shouldn't
custody law try only to protect children? I do not think so. Children are
not the only people worthy of moral concern, and our legal practices reflect
a commitment to many competing values.
Consider just a few examples: We permit parents to risk orphaning their
children by sky-diving and climbing mountains; we allow intact families
to relocate (for a job or just on a whim) even if this disrupts important
social ties for children. We also send parents who commit crimes to prison,
despite obvious harms to their children. And we force parents who commit
torts to pay damage awards, even though these payments impoverish children.
Why do we allow all these risks to vulnerable children? Because we think
that adults should be free to pursue their own interests, and because social
goals, such as crime control or justice between adults, sometimes matter
more than protecting children.
Relocation law already places many adult interests above child welfare.
For example, if Professor Braver is right, moves by non-custodial parents
harm children as much moves by custodial parents. Yet there has never been
a serious effort to deter non-custodial parents from relocating. That people
see little unfairness in this discrepancy suggests that the core issue
in relocation is access to children and choice of residence, not the best
interests of children.
Do these adult interests merit much weight in child custody policy?
If so, how should we resolve conflicts between the interests of custodial
and non-custodial parents?
Fairness requires us to take these adult interests seriously for
three reasons. First, relocation doctrine should try to allocate fairly
the personal hardships of divorce. Second, it should not exacerbate gender
inequality. And third, it should not involve the law in unjust coercion.
These conclusions do not provide simple solutions. But I will argue that
they counsel against using conditional custody changes to deter relocation.
My first argument begins from the perspective of equality. Parents regularly
make sacrifices to promote their children's welfare. Perhaps becoming a
parent requires committing in advance to sacrifice for the child when necessary.
But both parents share this obligation. Fairness between them counsels
that one parent not be asked to sacrifice far more than the other in the
interest of protecting their child.
Demands that sacrifices be fairly allocated are among the few positions
shared by advocates on both sides of relocation debates. Indeed, it may
be the reason these debates are so heated.
From the perspective of a noncustodial parent, relocation not only harms
the child and deprives him of frequent access; it does all this even though
he may already have made a very large sacrifice by accepting non-custodial
parent status. He may concede custody willingly - preferring to settle
custody terms quickly and peacefully for the benefit of the child. Having
already given up daily contact with the child, much to the benefit of his
former spouse, he is now asked to sacrifice even more for her convenience.
Custodial parents often see things differently. Child custody,
despite its many rewards, also requires work and sacrifice. The custodial
parent may feel she has given up personal freedoms and job advancement
to provide child care, and that she is now being asked to sacrifice further,
by foregoing a new job or proximity to family, all for the convenience
of a parent who already had more freedom and fewer child-care duties. Relocation
limits from this perspective are the insult added to the injury of her
disproportionate child-care duties.
And each parent often suspects the other of bad faith: non-custodial
parents believe that the move is motivated by spite or a desire to avoid
continued contact; custodial parents often think opposition is motivated
by spite or a desire for ongoing control.
No doubt there is some truth in both perspectives. Bad faith is always
possible. And any self-aware parent knows that time with children is both
a joy and a pain. In any given case, the balance of sacrifices and level
of sincerity may vary.
But for most cases, this balance is more certain. Most fathers do not
want custody of children, much preferring the freedom of visitation to
the ongoing responsibility of single parenthood. Given what we know about
the division of childcare chores and custodial parents' lower standard
of living, custodial parents likely sacrifice more on average than noncustodial.
Rules limiting their mobility exacerbate this imbalance.
I would weigh this imbalance less heavily if the law made great efforts
to restrain moves by non-custodial parents. Inequities would remain - for
example custodial parents would still likely suffer more from their inability
to move. But at least all parents would lose mobility so that their children
Without strong measures to restrain noncustodial parents, our laws
are doubly unjust in their impact. First, they ask the overworked custodial
parent to restrict her mobility to protect the child. And then they grant
broad freedoms to the relatively unencumbered non-custodial parent whose
relocation might be equally harmful. The inequalities I have mentioned
so far ignore gender. But we all know that most custodial parents are mothers
and that restrictive relocation rules disproportionately burden women.
This is especially so for poor women, who most desperately need to relocate
for higher pay or lower-costs, and who can least afford to navigate complex
legal proceedings required by the procedurally burdensome factual inquiries
that accompany restrictive rules.
For anyone who cares about equality of outcomes, restrictive relocation
laws are problematic. These laws tie women to the location of their marriage,
which often was chosen by their husbands, and therefore often keeps them
far from family. It also limits their mobility to seek better jobs or new
relationships, either of which may be important to raise their standards
of living. Those standards of living are - by all measures - lower than
men's after divorce. For some women, this lower earning capacity is due
to their prior career sacrifices made while caring for children.
At the same time, relocation law allows men to keep the jobs they had
during the marriage, or to relocate for better jobs or new spouses. Even
if all this is fully equal in principle, it does not work out as very equal
Despite all my arguments so far, I am remain ambivalent about relocation.
I share one intuition with people who oppose relocation: decent parents
ought to make personal sacrifices so that their children have frequent
contact with both mother and father - at least when there is no domestic
violence or other serious problem. I hope that I would do as much, and
admire the friends I know who have done so to protect their children.
If parents have this duty, shouldn't our legal system encourage them
to fulfill it? Often the parent seeking to relocate would remain with
the child if she had to choose between relocation and losing custody. By
threatening a custody change that need never occur, the law encourages
parents to fulfill their obligations. Absent domestic violence or high
conflict, this might work to children's advantage.
I do not embrace this conclusion for two reasons. First, the inequality
problem remains unless we enact strong measures to deter relocation by
non-custodial parents. If we really think parents waive their rights to
relocate away from children, we could dramatically increase the child-support
duties of non-custodial parents who move, or threaten to end their visitation
rights in the hope that the threat would induce them to stay.
Second, not all incentives are reasonable for governments to use. Most
of us recoil when the police leverage family members' loyalty to their
own ends. For example, officers sometimes threaten to prosecute a suspect's
spouse or child unless the suspect pleads guilty. The problem here is not
coercion, or even that people should not face hard choices; it is that
government should not threaten to undermine intimate relationships as a
way of influencing behavior.
Having offered some reasons to doubt that restrictive relocation laws
are fair to adults, I want to conclude with a few cautionary notes about
whether they are really important for children.
Professor Braver's research on this topic is in many ways careful. But
like any social science work it has limitations. I am reasonably confident
that he would be the first to acknowledge these. A few seem worth noting
First, the underlying data here is largely from surveys that ask
college students to recall events from their childhood, some of which long
predate the survey. There is nothing wrong with this method. But before
making policy choices based on these conclusions, we would want to see
them confirmed through other methods, such as longitudinal work that allows
measurements taken closer to the events being studied.
Second, it is always difficult to know whether relocation is causing
harm, rather than that harmful circumstances are leading to relocation.
Professor Braver acknowledges this issue. Indeed his paper examining whether
prior parental conflict caused both relocation and harm shows how important
causal ambiguity can be. Several of the harms discussed in his first paper
were reduced or eliminated once he controlled for conflict. This leaves
me wondering whether there are other omitted variables that, once studied,
would lead us to think relocation is not harmful at all. Indeed, if we
had information about actual parental conflict, rather than children's
memories of conflict years earlier, we might learn that conflict explains
all of the harm that Professor Braver attributes to relocation.
Third, Professor Braver's study compares the welfare of children
who moved with their mothers, or whose fathers moved away, with a third
group who fared somewhat better. This third group was a set of families
that remained near the marital home. The problem with this comparison is
that these families may have remained nearby one another voluntarily. Until
we can study children who live with custodial parents who were restrained
from moving, we cannot predict what effect restraining moves will have
on child welfare.
This comparison-group problem is more than just a methodological quibble.
Many other researchers have found connections between child welfare and
having a financially secure and personally stable custodial parent, and
a home free from violence. We know that escaping conflict and seeking stability
are common reasons given for wanting to relocate. So it seems likely that
mothers who did not relocate in Professor Braver's study faced fewer problems
with conflict, poverty, and personal stability than those who did relocate.
This pattern might reveal that children whose mothers relocated had more
problems than children whose mothers did not. But those children whose
mothers relocated might have been even worse off had their mothers been
forced to remain where they were. Given this uncertainty, we cannot really
know what relocation rule Professor Braver's data supports.
In closing, I have focused on fairness to adults. In most cases, these
concerns counsel allowing relocation without the need for burdensome factual
hearings. I am unsurprised to learn that the public may have contrary views
about fairness. And I do not discount the wisdom of common intuition. But
in this case, the unfairness may have escaped public notice. The job of
policy makers is to help shape public opinion to favor fair outcomes, rather
than to follow public perception.
As to children's interests, a large body of research suggests that children
do well when their primary caregiver does well (both financially and in
other ways). Until the harms of relocation are demonstrated with greater
certainty, we should not put custodial parents and children at risk by
limiting relocation for those who need it, either by coercive threats to
change custody or by costly and time-consuming legal proceedings.