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Late-blooming custody bill puts Legislature into marital wars

Monday, August 16, 2004

Late-blooming custody bill puts Legislature into marital wars


Television writer John Eisendrath celebrated last April when the state Supreme Court issued a landmark child-custody ruling, seeing it as legal ammunition in his long-running battle with his former wife.
Last week, Eisendrath was buttonholing legislators in the Capitol, trying to block a late-blooming bill that would overturn the Supreme Court's ruling. "I can't believe they're going to do this," Eisendrath said between calls on members of the Assembly Judiciary Committee, which is scheduled to take up the bill next week.

Last Monday, Senate President Pro Tem John Burton took one of his moribund measures, SB 730, stripped its contents, which had related to wages on public-works projects, and inserted a new measure that would, if enacted, negate the Supreme Court's ruling. And in doing that, Burton thrust the Legislature into one of the touchiest areas of state law - the legal rules governing divorce.

In any contest, the rules largely determine who holds the advantage. That's certainly true of the laws governing divorce and the subsidiary issues of child custody, child support and alimony. And the Democrat-controlled Legislature has tended to tilt toward women in setting the rules of marital battles, no small matter in a state as divorce-prone as California.

One clash occurred in the 1990s when the Legislature, in a rare deviation from its pattern, redefined alimony to place a burden on recipients, virtually all of whom are women, to become self-supporting. Women's rights activists protested, and within a year, the Legislature repealed the law. Many of those groups were on the losing side of April's Supreme Court decision and are backing the Burton bill, which deals with how and when a "custodial parent" can change residences and separate children from the other parent.

Eisendrath has been jousting with his former wife, who wanted to move from the Los Angeles area to San Luis Obispo, about 200 miles to the north, and take their two sons with her. He won a Superior Court ruling in 2000, with the judge agreeing with his contention that the move would damage the boys' relationship with their father, but lost an appeal, after which his former wife made the move.

Meanwhile, another, similar case was making its way through the appellate process, finally landing in the Supreme Court. It involved Gary and Susan LaMusga, and the latter's desire to move from California to Ohio, where her new husband had obtained employment. Appellate justices had ruled against Gary LaMusga, relying - like judges in the Eisendrath case - on an earlier Supreme Court decision that appeared to favor allowing a custodial mother to change residences.

The April decision favored the father in the LaMusga case, declaring that although they might be involved in "heart-wrenching circumstances," judges handling such matters must make decisions "that best serve the interests of the children" and not favor one parent over another. One Supreme Court justice, Joyce Kennard, dissented, saying that maintaining the "stability and commitment" of a child's relationship with the custodial parent should be given more weight.

Although the decision cheered Eisendrath and other fathers who had lost legal battles on efforts by their ex-wives to change residences, it angered women's rights groups that had filed briefs for the losing side in the LaMusga case, and they urged Burton to enter the battle with legislation. The new bill specifically declares that its intent is to "abrogate the decision in LaMusga" and reimpose a burden on Eisendrath and other noncustodial parents to prove that moving their children would be harmful.

Thus, it would shift the legal advantage back to custodial parents.

Eisendrath's chances of blocking the bill in the Assembly Judiciary Committee, dominated by liberal Democrats, are scant. Burton's stature as the Legislature's most influential member gives the measure a powerful push. Eisendrath is hoping, however, that Gov. Arnold Schwarzenegger can be persuaded to veto it - appealing to the governor's status as a father of four children. That could be another uphill fight, given Schwarzenegger's close-working relationship with Burton, although the governor is publicly frowning on last-minute "gut and amend" measures.

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