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.

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The decision fell to Terence Bruiniers, a judge on the Contra Costa Superior Court. Bruiniers wasn't the original judge in the divorce -- he hadn't even been a judge when the case began. A former prosecutor, he was appointed to the bench in 1998 by Pete Wilson during Wilson's final year as governor. Rookie judges regularly draw the dreaded family law assignment, allowing more senior judges to cherry-pick the more attractive assignments.

But the court psychologist was still around, and Judge Bruiniers asked Dr. Stahl for another evaluation. Stahl, who'd written a book on parental alienation, testified that he didn't think Suzy was purposefully alienating Gary from their children. However, according to Gary's attorney, Stahl did say Suzy was "unconsciously" doing so, and as a result the boys viewed their dad as all bad and their mom as all good. Stahl concluded there were "no good choices" regarding the proposed move.

Bruiniers decided that Suzy had a legitimate reason to move and wasn't asking to do so in "bad faith," that is, for the sole purpose of getting her sons away from their father. Still, he felt the primary issue was to try and fix "what is now a tenuous and somewhat detached relationship with the boys and their father."

Thus, in a situation with "no good choices," Bruiniers chose an option that even Gary hadn't asked for. Suzy could move to Cleveland, he decided, but not with the kids. If she moved, the judge said, she'd have to turn over primary custody to Gary, who had requested a fifty-fifty split.

"There's no way," Suzy recalls telling the judge. "I'm not leaving without my children."

In 1996 the California Supreme Court made a decision that was supposed to resolve any future move-away disputes. The case, which involved a Southern California couple named Burgess, pitted feminists against fathers' rightists and moms against dads up and down the state.

Wendy Burgess -- whose case was handled free of charge by celebrity lawyer Gloria Allred -- had primary custody of her two children and wanted to move them forty miles from Tehachapi to Lancaster, which was near her new job. Her ex- husband Paul objected, arguing that the move would disrupt his visitation schedule.

The upshot of the high court's ruling was that the parent with primary custody -- the "custodial parent" -- has a "presumptive right" to move away with the kids, absent a showing of bad faith or that the move would harm the children. Under a strict mom-friendly reading of Burgess, Suzy Navarro should have been able to take Garrett and Devlen to Ohio.

San Francisco attorney Joanne Schulman, who coauthored an advisory brief in the LaMusga case and is a board member of California Women Lawyers, claims numerous Bay Area judges are fathers' rights advocates who, she feels, ignore the law and instead rule from the hip. "There is a conspiracy among Bay Area judges," she says, "to get around Burgess."

Suzy's attorney, Kim Robinson, assails Contra Costa County -- where LaMusga originated -- as one of the worst offenders. Robinson says she is currently appealing two decisions by Superior Court Judge Judith Craddick, in which custody of the children was transferred to stay-behind dads.

Judge Bruiniers reasoned that the LaMusga divorce wasn't truly a Burgess move-away case, in part because the LaMusgas weren't cooperating in raising their boys. And while he wouldn't go so far as to accuse Suzy of parental alienation, he did say he felt she "reinforces negative comments that the children make to her" about their dad.

Gary's appellate attorney, Garrett Dailey, thought Bruiniers made a wise decision within the disputed parameters of the Burgess ruling. While it gives custodial parents the "presumptive" right to move away with the kids, that doesn't mean they have an absolute right, the lawyer reasons -- and if the court thinks allowing such a move would be detrimental to the kids, then it can do what Bruiniers did. The judge explained at the time that because Suzy was "incapable of promoting the relationship" between Gary and his children, a move across country from their father "would inevitably be detrimental to their welfare."


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