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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In Contra Costa Superior Court, Suzy ditched her request to move to Ohio and now asked the court for permission to go to Arizona with her two sons. After waiting ten months without any indication she'd get a hearing on her new request, Suzy decided she had had enough. Last July she packed up her family and moved without the court's permission. Her lawyer, Kim Robinson, made the bold but risky argument that Suzy, as the custodial parent, had a presumptive right to move under current law. Robinson announced the move in a press release titled: "After Seven Years of Legal Limbo in California Courts, Family Seeks New Life in Arizona."

It read: "The children's father, Gary LaMusga, and many other noncustodial parents believe that children should remain near them, even if their relationships with the children are poor and staying harms the children and custodial households." The release quoted Suzy as saying: "I'm trying to do what's best for my children. They are being hurt more than helped by this legal process." It predicted the move would "cause shock waves in California and across the nation."

It certainly shocked one person: Gary. He had no idea that his boys were moving 630 miles away until he got a phone call from a local TV reporter asking him to comment on the press release. Gary says he was too dumbfounded to say anything. "I was absolutely devastated," he recalls.

It's a desert-hot March morning in Mesa, Arizona, and Suzy Navarro is waiting for the pool guy to call. Life has settled down since she and her family moved. She now has luxury problems like a broken pool to deal with. In the Bay Area, she and Todd could only afford to rent their "dump." Now they own a house with a pool.

Being away from the Bay Area and Gary, Suzy says, means she is no longer consumed by her court battle. She feels a lot more relaxed nowadays, and the emotional benefits of the move have "trickled down" to the entire household. "The children are doing very well here," she reports.

Her move to Arizona was a huge gamble, and one that appears to have paid off. At least two other custodial mothers, Suzy's attorney says, have been arrested for moving away with their kids in defiance of the court since Navarro made her move.

In Suzy's case, the move forced the local superior court, which had left everyone's fate in legal limbo as it waited for the Supreme Court to do, well, something. The new judge on the case, John Kennedy, did something his predecessors arguably should have done long ago: He appointed an attorney to represent the boys, a move common in contentious divorces. The children's lawyer, Leanne Schlegel, recommended to the judge that the boys stay with their mom in Arizona while still seeing their father regularly. Psychologist Stahl was brought back in for a quickie evaluation. This time, he concluded it would be better for the boys to stay with their mom in Arizona than to uproot them again.

Judge Kennedy agreed, and although his order was temporary, it made anything the Supreme Court would do anticlimactic, almost irrelevant, at least as far as the LaMusgas and the Navarros were concerned. By the time the high court finally heard oral arguments last month on whether Suzy should be able to take the kids to Ohio, she and her sons had been living in Arizona for more than six months. Her attorney, Kim Robinson, predicts that the justices' decision won't change her client's current situation: "Practically, I don't think it will make a difference one way or the other."

Robinson says she even asked the Supreme Court to dismiss the case as moot. The justices refused, from which Robinson inferred that the Supremes intend to clarify their earlier ruling to avoid any further confusion in the lower courts.

During the February hearing, Justice Joyce L. Kennard asked the most questions and in the process revealed some insight into her thinking. Kennard asked whether it was more disruptive to the two boys to move with mom and leave dad behind, or be taken from mom to stay in the East Bay with dad. Kennard added that it seemed to her Judge Kennedy had used the "correct standard" in deciding to let the boys remain with Suzy in Arizona.

But in what Gary's lawyer, Garrett Dailey, hoped was a good sign, another justice made the distinction that in the Burgess case, the mother wanted to move only forty miles away -- not across the country.

Though the state Supreme Court's upcoming ruling could in theory force the two boys to move back with their dad, it probably won't happen. The day before the Supreme Court hearing, Gary told the San Jose Mercury News he wouldn't make the kids move back even if he won. He declined to elaborate on that quote for this article except to say, "I think I need to wait for the Supreme Court to make its decision and then proceed down the path that's in the best interests of my children." He now flies down to visit his sons one weekend a month and says he calls them every other day.


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