Wednesday, June 15, 2005

This time, mothers score court victory - Colorado

This time, mothers score court victory

By Al Knight

The Colorado Supreme Court has chosen sides in the gender wars.

In two decisions last week, the court handed the prize to divorced or divorcing mothers who had lost at the trial court level and in the Colorado Court of Appeals.

In those two cases, the lower courts had found - wonder of wonders - that it was in the best interests of the affected children to maintain close contact with their fathers. The trial judges in those cases ruled that the mothers of the children could not in one instance continue to reside in Arizona and in the other couldn't relocate with her child to that state.

Before dealing with the court's reasoning, a little history is in order. In 1963, and again in 1980, the Colorado Supreme Court found that it was against state policy to remove a child from the state's jurisdiction without a showing that the move was in the child's best interest.

That standard was tossed with a Supreme Court decision in 1996 in which the court discovered a presumption that it is in a child's best interest to remain with the custodial parent should that parent relocate to another state.

The state legislature, for obvious reasons, didn't much like that decision and so the law was changed in 2001 to provide that a court, presented with a request of a parent to move out of state, must take into account a long list of relevant factors, including the impact the move would have on the non-custodial parent's relationship with the child.

The new law clearly had two purposes: to rebuke the court for its decision creating a presumption in favor of the custodial parent (almost always the mother); and to level the playing field to benefit the father.

So it came to pass that a trial judge had to interpret the new law. In doing so, he appointed a special advocate to look into all of the relevant relationships affecting the child. The special advocate (a woman) found that that the child would be adversely affected by the separation from its father. Before reaching a decision, the judge also asked the parties to comment on an article in a respected family journal that discussed the adverse affects on children when the parents lived in widely separated locations.

Ultimately, the judge noted that the mother, who had not yet found employment in another state, was willing to stay in Colorado and so he ruled that she could not relocate to Arizona.

The Court of Appeals, in affirming this decision, specifically noted that the special advocate had found that the significant reduction in visitation by the father would have caused "irreparable harm" to the bond between the father and the child. (emphasis mine)

The three-judge panel found no abuse of discretion by the trial judge. On appeal, the Supreme Court held that the trial judge had abused his discretion by "prematurely" concluding there is a value to giving both parents ample access to their child. (Again the emphasis is mine - but truly, how sick is this? It needed to be in bold)

Justice Nancy Rice, who wrote the related opinions, said that the trial court should have given more consideration to the advantages the child would receive by staying with the "primary caregiver."

She went on to address whether the mother has a constitutional right to travel. She found that there is such a right, but it must be balanced against the right of the biological father to help raise his child. Then, after a wholly unimpressive balancing act, Rice and the court concluded the father's rights had to give way.

In reaching this conclusion, the court ignored the law and policy in some other states, including Texas, where the courts have said that the right of the mother to travel is not restricted in these situations. What is limited, and properly so, is the right of the mother to take the child, against the wishes of the father, to another state.

Colorado has obviously strayed from the notion that a mother wishing to move to another state has to demonstrate the move is in the best interests of the child.

Under the cases announced last week, the new standard is the best interests of the mother.

Still, as Father's Day approaches, it might be useful to note that 40 percent of America's children now live in homes without their real fathers. It should also be plain that last week's decisions will only make matters worse.

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