LaMusga v. LaMusga burgess v. burgess  BRIEFS FILED IN THIS CASE

Update: January 27, 2005. The children have been living in Arizona with their mother, stepfather and sister for eighteen months now. Now that things are being done their mother's way, they are doing fabulously well -- happy, healthy, and terrific in school. Much better than they ever did in California. They still are seeing their father too. So much for seven years of following the nitwit advice of third parties, and handwringing interloping of the team of father's rights psychologists who filed a brief ostensibly "in the children's interests" that did absolutely nothing of benefit for these children or any others. Finally, today, too, contrary to the ravings of father's rights media shill Glenn Sacks and father's lawyer Garret Dailey, the trial court has ruled on the long-pending issue of the "onerous child support" Gary LaMusga supposedly was paying. Seems that for the past two years, he was paying approximately $400 below the guideline amount. So much for the carrying on by the joint custody lobby about how these guys are all about their kids, and that it's not about the money...

  Mother's Petition for Rehearing, filed May 14, 2004.
This Petition raises constitutional issues for the first time. These issues will affect moveaway law in every state, if brought into the federal courts. A denial by the California Supreme Court of this Petition will make the issue ripe for federal lawsuit. The California Supreme Court decision is expected on or before July 28, 2004.

THE CALIFORNIA SUPREME COURT DECISION Lamusga v. LaMusga, April 29, 2004. "We reaffirm our statement in Burgess that "the paramount need for continuity and stability in custodial arrangements -- and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker -- weigh heavily in favor of maintaining ongoing custody arrangements." THE FATHER WINS... [more at liznote]

  Mother's Response Brief, filed October 17, 2003.
"[T]he Warshak Brief cites -- and then both misinterprets and misapplies -- much of the same research cited in the Wallerstein Brief. The Warshak Brief's distortion of research findings stems primarily from its failure to take into account the critical aspects of the 'move-away' family situation that confronted this court in Burgess... the Warshak Brief draws broad generalizations, some from research of dubious validity, that ignore the central findings of mainstream research squarely supporting the psychological pillars of Burgess..."

THE PEOPLE SPEAKBurgess is the law. October 5, 2003.
On October 5th, California Governor Gray Davis approved SB 156 (Burton), affirming the California Supreme Court's ruling in Burgess v. Burgess (1995). The Burgess decision, now affirmed by statute, upholds the right of a custodial parent to relocate under most circumstances. Burgess places the burden of proof on the noncustodial parent to show that a relocation would be harmful to the child. Senate Bill 156, authored by Senate President Pro Tem John Burton and sponsored by the Coalition for Family Equity, provides clear guidelines for maintaining the Burgess standard of protection in current and future relocation cases, including LaMusga which is currently before the State Supreme Court. -- Bonnie Sloane, Coalition for Family Equity


SECTION 1. Section 7501 of the Family Code is amended to read:

7501. (a) A parent entitled to the custody of a child has a right to change the residence of the child , subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.

(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

Suzy's story, background via press release, July 9, 2003.
Justice Delayed is Justice Denied -- National Coalition for Family Justice of California, Inc. "The 1996 landmark California Supreme Court case In Re Marriage of Burgess was supposed to prevent this kind of thing from happening..."

Judge Kennedy shows his mettle, August 8, 2003. Custody evaluator Philip Stahl redeems himself; children's lawyer Leanne Schlegel agrees: the children should move to Arizona with their mother!   Judge Kennedy now has ruled that the children should remain in Arizona with their mother pending the California Supreme Court decision, stating that the custodial parent has a presumptive right to move and under that standard, the children should remain with her, but that even under a "best interests" determination, his decision would be the same. That means the case for the Lamusga-Navarro families at least, is essentially moot. So now what...

Mother's Motion re Judge's "Best Interests" Order, July 29, 2003.
"Petitioner, Susan Navarro, hereby respectfully moves the Court to clarify or reconsider its Order Appointing Custody Evaluator entered on July 25, 2003, because it misstates the proper legal standard... The correct standard is not 'whether the best interests of the parties' minor children are served under the current circumstances by temporarily allowing them to remain in the primary physical custody of [their mother]... but rather "whether, in light of Navarro's presumptive right to move with the children to Arizona, a temporary change of custody is essential for the children's welfare to prevent substantial 'detriment' to the children as a result of the move."

Mother's Objection to Untimely Briefs by Warshak, Shear, July 26, 2003.  
LATE-FILED AMICI BRIEFS PURPORTING TO BE ON BEHALF OF "THE CHILDREN."-- "On Wednesday, July 23, 2003, I became aware that at least one amicus/amici curaie brief is to be submitted to the Court for filing on or shortly after July 25, 2003, more than four months beyond the due date for amicus briefs... I confirmed with Leanne Schlegel, the childrens' court-appointed attorney, that she had not been contacted by anyone regarding the filing of an amicus brief on behalf of the children, nor had she consented to or authorized the filing of any such brief... the custodial parent of the children, has not been informed of, nor consented to, the filing of any briefs on behalf of the children." Also see Sandra Blair's and others' comments on this issue. Also see liznote.

Press release, July 8, 2003 -- Kim M. Robinson, Esq. (mother's lawyer).
MOTHER ANNOUNCES THAT SHE HAS MOVED -- statement issued by Suzy Navarro's lawyer. "Pleasanton, California -- A San Francisco Bay area mother who has been prevented by litigation from leaving California for more than seven years in order to keep her children closer to her ex-husband has this week moved her family to Mesa, Arizona..."

Text of letter of July 8, 2003 announcing the move to the father.
from mother's lawyer Kim M. Robinson, Esq. "I am writing to notify you that Susan Navarro's move to Arizona with her family -- which I advised you at hearings in May and June would take place by August 1, 2003 -- is now in progress..."

Additional background and case details.
"It took Susan Navarro seven years to leave California after her divorce in 1996. Ironically, that divorce occurred several months after the California Supreme Court upheld the right of custodial parents to decide where they and their children would live [In Re Marriage of Burgess]."


In Re Marriage of Burgess, California Supreme Court, 1996
The landmark "move away" case held that custodial parents have a "presumptive right" to relocate post-divorce with their children, subject to the state's power to restrain a move that would prejudice the rights or welfare of a child under circumstances in which a change of custody is "essential for the child's welfare."

Court of Appeal Decision, LaMusga v. LaMusga
"Mother, as custodial parent, was presumptively entitled to move with the children, so she did not need to obtain an order allowing her to do so... We remand with directions [to the trial court] to determine whether, in light of Mother's presumptive right to move with the children, a change of custody is essential for the children's welfare."

  Mother's Brief, LaMusga v. LaMusga, California Supreme Court
Kim M. Robinson, Esq for Susan Poston Navarro.. "Given the paramount importance of maintaining the children's established mode of care with their primary caretaker, the burden on the noncustodial [parent] is a heavy one, and rightfully so."

  Judith Wallerstein's Amicus Brief, LaMusga v. LaMusga, CA Supreme Court
Tony J. Tanke, Esq. for Judith S. Wallerstein, Ph.D., Paulina F. Kernberg, M.D., Joyanna Lee Silberg, Ph.D., Julia M. Lewis, Ph.D., John B. Sikorski, M.D., and Stephanie J. Dallam, R.N., M.S.N., F.N.P.

  Law Professors' Amicus Brief, LaMusga v. LaMusga, CA Supreme Court
Brief filed by Professor Herma Hill Kay, Professor Grace Ganz Blumberg, Professor Carol S. Bruch, Professor Janice E. Kosel, Professor Frances Olsen, Professor Joan Heifetz Hollinger, Professor Mary Ann Mason, Professor D. Kelly Weisberg, Professor Jan C. Costello, Honorable Sheila James Keuhl, Professor John E. B. Myers, Professor Lisa C. Ikemoto, Professor Scott Altman, and Professor Janet Bowermaster. [The pdf version of the law professors' brief will be up soon. If you need something now, email sarah at]

  CA Women's Law Center et al., LaMusga v. LaMusga, CA Supreme Court
Brief filed by California Women's Law Center, California Women Lawyers, Coalition for Family Equity, California Federation of Business and Professional Women, California National Organization for Women, Feminist Majority Foundation, Children Now, California Alliance Against Domestic Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, San Francisco Women's Lawyers' Alliance, Queen's Bench Bar Association of the San Francisco Bay Area, Women Lawyers Association of Los Angeles, Lawyers Club of San Diego, Women For, National Council of Jewish Women /Los Angeles, Women's Equal Rights Legal Defense and Education Fund, Asian Pacific American Legal Center, Arizona Coalition Against Domestic Violence, Iowa Coalition Against Domestic Violence, Minnesota Program Devlopment, Inc, New Jersey Coalition for Battered Women, Pennsylvania Coalition Against Domestic Violence. See bios.

  Legal Aid et al. Brief, LaMusga v. LaMusga, CA Supreme Court
Joanne Schulman, Esq. for Margaret A. Gannon, Joanne Schulman, Cheryl Sena and Carol Cullum, Deborah Appel, Patricia Wagner, Leslie Knight, Glorida Sandoval and Stand! Against Domestic Violence, Roy F. Malahowski, Barbara Hart, Lynne Arrowsmith, Nina Balsam, Andrea C. Farney, Dianne Post, Anne E. Thorkelson

  Father's Brief, LaMusga v. LaMusga, California Supreme Court

  Richard Warshak's Brief, LaMusga v. LaMusga, CA Supreme Court
This brief, and Leslie Shear's brief, below, are the interloper briefs that purport to be on behalf of the children, but were in fact long in the planning and preparation, and deliberately filed late as a political maneuver designed to use Braver et al.'s conveniently timely "research" anti-moveaway in order to make the misleading arguments it contains at a time when they would not be able to be challenged by the legitimate, timely briefs in this case. also see: Application for Leave to File Amici Brief by Richard A. Warshak, Sanford L. Braver, Joan B. Kelly, James H. Bray, and William G. Austin  [see liznote]

  Leslie Ellen Shear's Brief, LaMusga v. LaMusga, California Supreme Court
also see: Leslie Ellen Shear's letter asking for leave to file late brief. (Shear sent an email on July 23, 2003, to several listserves mass-soliciting signers-on. See the comments of Sandra Blair, CFLS, and others on this issue.

  Mother's Response Brief, LaMusga v. LaMusga, California Supreme Court
"[T]he Warshak Brief cites -- and then both misinterprets and misapplies -- much of the same research cited in the Wallerstein Brief. The Warshak Brief's distortion of research findings stems primarily from its failure to take into account the critical aspects of the 'move-away' family situation that confronted this court in Burgess... the Warshak Brief draws broad generalizations, some from research of dubious validity, that ignore the central findings of mainstream research squarely supporting the psychological pillars of Burgess..."

The Braver Study

Prof. Norval D. Glenn, Ph.D. and David Blankenhorn, September 5, 2003
Earlier this summer dozens of articles appeared in newspapers across the U. S. reporting a study by three professors at Arizona State University. Under headlines such as "Moving Away Really Hurts Kids" and "Moving After Divorce Damages Kids," the articles claimed that the ASU research provides compelling new evidence about whether or not a custodial parent should be allowed to move with a child... In fact, the ASU study provides no credible evidence about the effects of the children of divorce being geographically separated from one of their parents...

Press release, Judith Wallerstein, Ph.D., June 30, 2003
MISREPRESENTATION OF FINDINGS IN PRESS RELEASE BY APA on Braver post-divorce relocation study [RELOCATION OF CHILDREN AFTER DIVORCE AND CHILDREN'S BEST INTERESTS] released by the APA June 25, 2003. "The study presented by Braver, Ellman and Fabricious as the centerpiece of their argument that courts should bar the mother who has custody from moving with her children..."

Additional information and background -- liz
"The study write-up and press releases were timed to move public opinion in anticipation of the California Supreme Court's decision in the LaMusga case...The study is badly conceived and poorly done, but worse than that: Braver, Ellman and Fabricius have blatantly misrepresented their findings."

50-Minute Hour
"[T]he authors of the study didn't want to publish a conclusion that kids don't need their fathers living near them, and so in the findings, they simply lumped all of the results together..."

Ampersand (Barry Deutsch)
"I'm convinced that the methodology of this study is so dubious, it doesn't prove anything... But if it does... it shows that kids in father-custody are in trouble..."

Atrios (Leah)
"The same kind of Whitehead style of flawed social science research... Someone named Sanford Beaver seems to have needed to prove that maternal moveaways lead to damaged children..."

Calpundit (Kevin Drum)
"Lying with statistics yet again..."

Gallowglass (Henry Farrell)
" science by groups with an axe to grind."

Markarkleiman (Prof. Mark Kleiman)

Marriage Movement (David Blankenhorn)
"If this study holds up at all under any kind of scrutiny, I'll be very surprised."
"I lean toward my friend Judy Wallerstein's perspective."

Trish Wilson
" an amazing coincidence... just in time to be used as evidence in a prominent California trial... [but finding] that children who live with their mother suffer next-to-no-harm from being moved..."

Expository Magazine article
"Braver's position was so weak that he sought to bolster it by tagging on Robert Bauserman's debunked joint custody meta-analysis and made-up father-involvement nonsense."


[liznote: The briefs that the mother objects to are those in favor of modifying Burgess, i.e. actually written on behalf of the father's position although purporting to be on behalf of "the children." These are the briefs that are being/were prepared by father's rights advocates Leslie Ellen Shear, Sanford L. Braver, Richard Warshak, Lyn Greenberg, William G. Austin, et al., along with a long list of after-the-fact solicited co-signers-on. These briefs deliberately were timed late (with no obvious reason for the lateness) in order to use -- without its being able to be challenged -- Braver's specious research, above, purporting to show that relocation is a negative for children. These briefs also heavily use, inter alia, Michael Lamb's and Joan Kelly's recent article in the same APA journal citing to Braver's misrepresentations, hypothesizing similarly.

Dishonest. If one has to resort to such shennanigans, I think that goes a long way toward saying something about the actual merits of one's position. The mother properly objects in that none of these so-called amici for "the children" actually represent them, or even have met the children. These interloping "amici" neither asked nor provided any notice to either the custodial parent or the children's lawyer before entering the fray with their political agenda with their conveniently timed "new research."

Shear's brief claims that the reason for the late filing is that "After reading the Wallerstein brief, we felt it was imperative to act on behalf of the LaMusga children, and all the children similarly situated in our state." Pants on fire, Leslie. You've been campaigning to overturn Burgess for years, and last summer you wrote your letter brief urging this case go forward in the California Supreme Court, also mentioning Braver's as-yet unpublished specious "new findings." Wasting the LaMusga children's parents funds to pursue a moot case to move to Ohio -- not to mention that remaining behind with their father clearly is not in their interests -- hardly is "representing" them.-- liz]

Also see Sandra Blair's and others' comments on this issue.

[liznote: It should be abundantly clear at this point that neither the father nor his specious contingent of legal and psychological amici "represent the children's interests." But, it bears remembering that because of the politically-motivated lobbying, campaigning, and meddling in this case, the California Supreme Court still will review the legal question of what the "moveaway law" in California should be.

The question I now ask is: "How do we avoid the atrocious expense, the egregious waste of time and lives -- in this case SEVEN YEARS' worth -- the unnecessary litigation, the burdens, the sacrifices and the grief that families like this have to go through?" Surely there do exist situations in which a move by the children with their primary parent would be so clearly detrimental that in such cases, the children MIGHT be better off if custody were switched to the noncustodial (or "lesser timeshare") parent (although this is not a "given.") But the key here -- talking about where the LAW should be -- and illustrated by this very case, is that such circumstances simply will not occur in the majority of cases. Does it really take seven years, or a new custody trial, the expense of a custody evaluation, or the extraordinary (and often insurmountable) burden that the father's rights groups would like to see placed on custodial parents in order to figure this out? Hardly. When a move is "clearly detrimental" or stupidly undertaken that will be pretty obvious.

Be this as it may, most custodial parents just do not cavalierly pick up and move for frivolous or "vindictive" reasons. It's no minor undertaking. Recall that the mother in Burgess sought to move a mere 40 miles in order to avoid a long work commute and also remain maximally available to her children. Moving a household with children to a new town or state simply is not a task undertaken lightly (yet the courts do not restrain the benefitless moves caused by things like ordering the sale of marital homes! And the courts often do not restrain things like school changes brought on by a parent's refusal to continue to pay for private school -- as happened in the LaMusga case. And the courts do not restrict children from flip-flopping back and forth between parental households. Caveats for those cases in which the courts have made bad decisions and placed children into joint physical custody or with the wrong parent in the first place -- let's have fewer of them.)

The law must be set where it will minimize litigation and misery, and stabilize children's lives, while permitting courts the ability to act on behalf of children under those minority of circumstances in which it is essential, obvious that the children's welfare requires the extraordinary remedy of altering their existing living situation in a different way -- a change in custody. Seven years is half a cognizant childhood! The reasoning of the Burgess court should be upheld, strengthened, and clarified -- in no uncertain terms.

The desires of the father's rights politicos to achieve what would be, in essence, an unconstitutional restriction on custodial families' lives in the hope of financially and emotionally wearing them down until they finally give up -- or else terrorizing custodial parents from the gitgo into a resigned serfdom of being chained to the soil where they happened to reside when they became divorced -- by making them choose between unpalatable alternatives that WILL cause "detriment" to the children -- in order to exact indirectly, nee EXTORT, from that person who cares about those children most, concessions waiving rights that the Constitution of the United States prohibits state courts directly to violate, is moved by abominable -- abominable -- motives.

Those who don't understand this may be clinging to the extremely misguided fantasy of being able to normalize divorce as okay for children by somehow maintaining the equivalent of an intact home via the silly idea of a "binuclear family" -- but ignorance, however well-intentioned, is not excusable when it harms other people. I say: get out of the clouds and accept the reality of the situation, and help give children who don't have intact two-parent homes what they NEED, which is an intact, supported, peaceful and unstressed one-parent or one-parent/stepparent home. There is no one in the world who cares more about children's best interests and their welfare -- or is in a better position to ascertain those interests -- than that person who already has made raising them a priority. -- liz]

[liznote: The pdf files of the briefs ostensibly written by Richard Warshak carry over word doc ID indicating that the document author actually was (as the typist misspelled it) "Sandford Braver." -- liz]

[liznote: Lookie over here at this relocation case from New Hampshire to see what the fathers' rights advocates would like to see happen in California. Costa v. Costa -- a convicted sex offender with only supervised visitation gets to make everyone live their lives around his pedophile therapy treatment and visitation demands. "Best interests" of children fatherhood. -- liz]

[liznote: This opinion has some of the most squirming, mealy-mouthed prevaricating bits of judicial equivocation that I've read in a while... Bush v. Gore-ish... or... orWELLian!

A few of the bits: (1) "Essential" is not the same as "expedient" but what's "expedient" is just as good; (2) "if" does not preface a condition; and (3) Burgess is upheld. But... I'm reading and re-reading the opinion and keep missing where the Supreme Court found the custodial parent's "presumptive right to move" to have been applied by the LaMusga trial court -- let me know if you see it...

Cutting through the drivel, the pages and pages of selective review of what must be so because Phil Stahl said it, the political dancing, the twisting about the facts of a moot underlying case in which a custodial mother who moved to Arizona was prohibited from moving to Ohio, apologia re a trial court's "misspeaking," and the Supreme Court's divining of the same court's unspoken mental machinations...

We have this clear directive from the twilight zone:

"We reaffirm our statement in Burgess that 'the paramount need for continuity and stability in custodial arrangements -- and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker -- weigh heavily in favor of maintaining ongoing custody arrangements.' "


the trial court was correct to threaten to remove custody from the primary caretaker and give it to a man who has a tenuous relationship with children who do not want to live with him IF she moves to Ohio -- however, that is not a "conditional change of custody."

[i.e., a specious (or just stupid) decision. -- liz]