LaMUSGA v. LaMUSGA - California Supreme Court Moveaway Case


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].

Following the dissolution of the marriage of Suzy Poston and Gary LaMusga, the California court assigned sole physical custody of Garrett, 4, and Devlen, 2, to their mother. She had been and remains their primary caregiver since their births.

Following the divorce, Ms. Navarro asked to move to Ohio to attend law school and be near her family. But her former husband, Gary LaMusga, objected. When a psychologist advised the parents that a two-year delay was needed to cement the children's relationship with their father, Ms. Navarro agreed to wait. She postponed her dreams of law school and waited almost five years before renewing her request. By then, the former spouses each had remarried, and she and her new husband had a 15-month-old daughter.

At the time of Ms. Navarro's first moveaway request, the judge and court-appointed custody evaluator in the case (Philip Stahl) felt that the boys' relationship with their father was not solid and required more time to develop before the mother moved the children such a distance from him. Consequently, the mother's post-divorce plans and career dreams were put on hold. During the next five years, the former Suzy Poston nee LaMusga remarried Todd Navarro and had a third child.

In 2001, when the boys were 9 and 7 years of age, Ms. Navarro again asked to move to Ohio. Todd Navarro had accepted a significant promotion with a company in Cleveland, and moved in with her extended family in March 2001 to take up the new job opportunity. Ms. Navarro was to follow with the children once a revised visitation schedule was worked out with the boy's father.

Unfortunately, Mr. LaMusga had been unable to improve his relationships with Garrett and Devlen during the intervening five years. Thus, the trial judge found in August 2001 that Mr. LaMusga still had a "tenuous and somewhat detached relationship" with his sons.

The trial court decided that the boys needed still more work on their relationship with their father. Ms. Navarro would have to leave the boys behind for at least one year with their father if she moved. The court ordered additional relationship therapy between the father and sons.

Although for years the boys' father repeatedly had raised "parental alienation" as the reason for his difficult relationship with his sons, the court opined that Ms. Navarro had not acted to alienate the children from their father. She did not seek to move in order to limit the children's contact with him. But the judge nevertheless placed higher importance on reinforcing the relationships between the children and their father, and concluded that a move to Ohio would interfere with the on-going counseling sessions that sought to improve the dynamics between Mr. LaMusga and the boys. He therefore ordered that if Ms. Navarro moved to Ohio, custody of her two sons would be transferred to their father for at least a year so that their father might continue in therapy with them.

Rather than leave her children behind in a houshold in which they had never lived, with a stepmother and her child from a prior relationship with whom they did not get along, Suzy Navarro appealed the trial court's decision.* Meanwhile, her husband went on ahead to take the job that had made their new plans possible. But after a year apart, the case was still on appeal, the Navarro's marriage and finances were under strain, and Todd Navarro returned to his family in Pleasanton in February 2002.

A few months later, in May 2002, the Court of Appeal for the First Appellate District in San Francisco unanimously reversed the trial court's decision. The appellate court decided unanimously that Ms. Navarro was free to take the boys with her. By then, the children and their father also had concluded the trial court's ordered therapy.

At that point, however, the planned move to Ohio was permanently thwarted.

And even so, before the case could be returned to the Contra Costa County court to implement the conclusions of the San Francisco Court of Appeal, Mr. LaMusga filed an appeal with the California Supreme Court.

Mr. LaMusga, backed by political proponents seeking to overturn the Burgess decision, nevertheless appealed the appellate court decision. And, when the California Supreme Court took the case, and then refused to drop it after being advised that the issue was moot, the Navarro family once again was placed into an expensive and harrying limbo.

The Current Law In California on Post-Divorce Relocations of Children

The California appellate court enforced Mrs. Navarro's right as the custodial parent to change the residence of the minor children so long as the move would not be prejudicial to their rights or welfare. In doing so, it applied a controlling California statute and quoted the California Supreme Court's 1996 decision in Marriage of Burgess.

In Burgess, the Supreme Court concluded that, because of the ordinary needs of both parents following a divorce to secure or retain employment, to pursue opportunities for educational or career advancement, or to reside in the same location as a new spouse or other family, it is unrealistic to assume that divorced parents will permanently remain in the same location after their marriage ends. Moreover, it is unlawful to exert pressure on either of them to do so.

Therefore, the Burgess Court held that the only circumstances under which a custodial parent's right to move away with her children can be denied is if the move is in "bad faith" (i.e. intended to interfere with the non-custodial parent's contacts with the children) or if the children will suffer such detriment or harm from the proposed move that it is "essential" for their welfare to change their custody to the other parent.

California law recognizes that the relationship that requires greatest protection for a child's benefit is the child's relationship with the person who is the child's primary caregiver. In this case, that caregiver is their mother.

The Navarros' Move to Arizona in July 2003

In September 2002, Mr. Navarro was offered a position in Arizona that would double his income. For the third time, Ms. Navarro asked the trial court to enter a new visitation schedule to facilitate the family's move, this time to Mesa, Arizona.

Ten months later she still is waiting for the trial court to act, and the California Supreme Court has required her to continue litigating whether she may move to Ohio.

The boys, who were 4 and 2 when their mother first sought a better life for them in Ohio, are now 11 and 9. The ongoing litigation has caused serious financial setbacks for the family. First, there were extra expenses while they divided their household so that they could hold open their option to move to Ohio. Almost a year later, when the Navarros decided that they needed to be together again, Todd Navarro had to take a large cut in pay when he returned to the San Francisco Bay Area. Now Ms. Navarro reports that the boys, who are both honor students, will enjoy enhanced educational and extra-curricular opportunities in Arizona. These have been restricted in California, where the court has also delayed hearing her 2001 request for an increase in child support until January 2004.

Although no legal rule or court order has prevented the Arizona move, the Navarros, like many other California families, waited, hoping to ensure that everything, including the children's visitation schedule with their father, would be clarified before they left.

But after so many years of court-imposed delays and lost opportunities, as they saw the boys' childhoods passing by, the Navarros finally decided the family needed to move forward. Now they hope that the California courts will honor Ms. Navarro's clear legal right to make this decision on behalf of her children and her marriage.

The family plans to foster frequent continuing contact with the father by means of e-mail, telephone, regular visits and vacations. Mesa is approximately 650 miles from Mr. LaMusga's residence in the San Francisco Bay Area.

Todd and Susan Navarro have purchased a home in Arizona that also will accommodate the needs of the boys's maternal grandmother, Catherine Poston, who will live with them. She and her grandson's always have enjoyed a close bond. The widowed Mrs. Poston is now seriously ill with congestive heart failure and is unable to continue living alone in Houston, Texas.

* Regarding dividing up siblings, see In re Marriage of Williams (April 26, 2001) California Court of Appeal, 2 Civil B145636 (Div 6), 88 CA 4th 808, 105 CR2d 923, FIRST ALERT #F-2001-996, per Yegan, J (Gilbert, PJ, and Coffee, J, concurring). (Does it make a difference to children who always have lived together whether they are "half" or "whole" siblings? The Williams court said that no California court "has sanctioned a custody order which, in essence, divorces children from each other.")

Among those signing amici curiae briefs with the California Supreme Court in support of Ms. Navarro's right to make relocation decisions on behalf of her sons are Dr. Judith S. Wallerstein, noted author of ground-breaking long-term studies of the effects of divorce on children; Herma Hill Kay, former dean of the law school at the University of California at Berkeley; Carol S. Bruch, Professor emerita at the law school of the University of California at Davis; California State Senator Sheila J. Kuehl; law professors and deans at USC, UCLA, UC Hastings, UC Berkeley, Loyola University, Golden Gate University and the University of the Pacific; the California Women's Law Center; California Federation of Business and Professional Women; California Alliance Against Domestic Violence; and a group of legal aid and private attorneys.

Relevant Research

Studies of children in the Armed services have shown no different level of adjustment or maladjustment than that in the general population, despite frequent moves and lengthy separations from one parent, most often the father.

A recently published study and several recent articles quoting it claim that research findings show that children suffer from post-divorce relocations. Upon close reading, however, it reveals that no harm is likely to result from moves by children in the custody of their mothers. A critique by Judith Wallerstein, Ph.D. of the study's methodology and conclusions is available at

Contacts - Authors of Amici Curiae Briefs on behalf of the Mother:

KIM M. ROBINSON, Esq. (with Eric Zagrans, Esq.)
(attorney of record for mother Susan Navarro )
2938 Adeline Street Oakland, CA 94608
510.832.7117 (telephone)
510.834.3301 (facsimile)

TONY J. TANKE, Esq. (author of amicus brief in burgess v. burgess)
(for Dr. Judith Wallerstein and other mental health experts)
1949 5th Street, Suite 101, Davis, CA 95616

Prof. CAROL S. BRUCH author of amicus brieg in in re marriage of burgess
(for Profs. Herma Hill Kay, Mary Ann Mason, Janet Bowermaster, and other law professors)

(for California Women's Law Center and other organizations)
3460 Wilshire Blvd., Suite 1102, Los Angeles, CA 90010
213.637.9900 ext. 207

(for Margaret Gannon, Esq. and other poverty lawyers)
1390 Market Street #818, San Francisco, CA 94102
415.863.5300 ext. 12