by Scott Altman
rdgardner richard gardner carol bruch carol s bruch parental alienation syndrome comments

[transcript of remarks at an AFCC conference in 2008]

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 can flourish.

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 in effect.

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 here.

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.


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