Should She Stay or Should She Go? 

A bitter East Bay divorce has sparked a legal gender war, with huge ramifications for custodial parents who want to move their kids out of state.

Gary LaMusga stands outside the California Supreme Court in Sacramento, trying to hold back tears. The justices have just heard his attorney, Garrett Dailey, argue why Gary's ex-wife, Susan, should not be allowed to take the East Bay family's two children with her to another state. When a reporter asks LaMusga (pronounced "la-moo-shay") why he has taken the case all the way to the Supreme Court, his eyelids flicker. "Because I love my children," he explains. "I've had to do everything I could to have a relationship with my sons."

Susan -- who prefers Suzy, and uses her new husband's last name, Navarro -- heads out of the courthouse at the same time as Dr. Judith Wallerstein, a prominent Marin County psychologist known for her groundbreaking work on the effect of divorce on children. Wallerstein's research is widely credited -- or blamed -- for influencing earlier state Supreme Court decisions in landmark custody battles. Before today, Suzy had never met the academic, though Wallerstein and other researchers filed a brief on her behalf recommending Suzy should be allowed to keep custody of the kids and move away with them if she wished.

Wallerstein isn't the only bigwig weighing in on the LaMusga case. The fate of Gary, Suzy, and their sons has become the topic of debate among family law attorneys, fathers' rightists and feminists, and prominent social scientists with dueling theories. The court battle even spawned a curious piece of legislation last year endorsing an earlier Supreme Court decision. The bill was carried by state Senate President Pro Tem John Burton and signed by Gray Davis in his final months as governor. And the case itself has become synonymous with what family-court experts call "move-aways," a harsh by-product of an increasingly mobile society with a 50 percent divorce rate.

LaMusga is pretty typical of move-away cases: The parent with custody wants to relocate far from the other parent, ostensibly for financial reasons. Because the custodial parents are usually moms, and dads usually get left behind, the issue of how the courts should treat such cases has pitted feminists against fathers' rights groups. To the latter, Gary exemplifies their claim that family court judges unfairly favor moms in custody battles. To women's rights groups, Suzy symbolizes how the courts are, in the words of one San Francisco attorney, holding mothers "hostage to the location" of the father.

Neither Gary nor Suzy are entirely comfortable being treated as symbolic celebrities by their respective supporters. In fact, both play down gender in their feud. "It's not a male/female issue," Gary says, noting that there are also moms out there in his position. Suzy doesn't think of herself as a feminist. Perhaps unwittingly proving her point, she says, "I'm just an average Joe."

This, however, is no longer your average case. The Supreme Court's decision in LaMusga, due within the next forty days, will potentially affect generations of feuding parents fighting over their kids in California divorce courts. But at this point, in all likelihood, it won't have any effect on one broken family -- the LaMusgas.

Within the first year of filing for divorce, Suzy racked up $59,000 in attorney's fees, which forced her to file for bankruptcy; Gary ran up a $41,000 tab over three years. No one can seem to pinpoint how the LaMusga divorce got so nasty in the first place. It seems odd that things would so escalate between two people who outside the courtroom come across as kind, modest human beings.

Gary is a devout Christian: On the morning of the Supreme Court hearing, he says, the first thing he did was get down on his knees and pray. The 51-year-old businessman has a light touch with people that quickly fades when the issue of his divorce comes up. One moment he's bantering with strangers outside the courtroom; the next he's breaking into tears as he recollects his seven-year fight over his sons.

Gary grew up in the small California town of Oroville. His own dad, he says, was a constant presence in his life, coaching Gary's Little League teams, leading his Boy Scout troop (Gary eventually became an Eagle Scout), and taking him to church, where he was an altar boy for eight years.

Suzy, now 44, grew up in Ohio, the youngest of eight. She'd gotten a college degree in finance in 1982 and had wanted to get a master's degree, but didn't have the money. She wound up working as a flight attendant for Continental Airlines. Through this whole divorce process, Suzy says, she has tried to check herself and examine her actions -- is she doing anything out of spite for Gary? She has read the literature showing that cooperative divorces are better for the kids. But, well, not all divorced couples are so lucky. "Some divorces just don't go amiably," she says. Like Gary, Suzy says she just wants what's best for her kids, although they obviously have different notions of what that means.

She and Gary were in love once, of course. They met in 1988, when Suzy's sister set them up on a blind date. They hit it off, and tied the knot six months later. When it came time to start a family, Suzy quit her job to stay at home with the children. According to Suzy, both she and Gary wanted it that way. She gave birth to the couple's first son, Garrett, in 1992. Their second son, Devlen, was born two years later to the day.

Like any other couple, the LaMusgas had problems, but their marriage finally unraveled for good in 1996, according to divorce court records, as the boys' double birthday party approached. Suzy didn't want Gary's troubled sixteen-year-old daughter from his first marriage to attend. Gary, however, had told his daughter she could come. The couple got into a shouting match that ended with Suzy pounding the back of Gary's head with her fists, as Gary told the story in early court filings. Two months later, in July 1996, he moved out of their Danville home.

Suzy, Gary says, wouldn't let him see the boys for three or four weeks after he moved out -- until a court evaluator required her to let him visit them for a few hours one day. But Gary wanted more than just visitation privileges; he wanted joint custody of his sons. Suzy wanted sole custody and argued in court that she deserved it more than her ex, whom she criticized as an absentee father who worked ten-hour days and drank too much. If her husband wasn't working overtime on his brokerage business, he was schmoozing at the Rotary Club trying to promote it. She boasted that Garrett, her eldest, had spent only one night out of her care -- the night she gave birth to Devlen. "The boys," Suzy told the court, "look to me for continuity, consistency, and constancy in their lives."

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