Research - PAS - bonding and relocation
The Burgess Decision and the Wallerstein Brief
Divorcing couples traditionally incorporate
into their settlement contract a stipulation regarding relative
degree of freedom to relocate, especially if the relocating
parent has primary custody of the children. Typically, the
primary custodial parent might be restricted from moving outside
of the state in which the divorcing couple has resided or
there may be a specific mile-radius or travel-time radius
beyond which the primary custodial parent cannot relocate.
In recent years, courts have become increasingly permissive
with regard to allowing relocation by primary custodial parents
and the once stringent requirements that needed to be satisfied
in order to justify relocation are being progressively relaxed.
In 1996 the Supreme Court of California in Re the MARRIAGE
of BURGESS (1996) 13-Cal 4th 25 has set a precedent for even
further relaxation of these once-rigid restrictions.
The Burgess Decision has been frequently quoted in the State
of California and is receiving widespread attention elsewhere.
It is the author's opinion that this precedent is ill-conceived
and will most likely result in significant grief and suffering
for the nonrelocating parent as well as the relocating children.
As a forensic psychiatrist who has been extensively involved
in child-custody litigation for over 35 years, and as one
who has testified in approximately 30 states, I have always
viewed the State of California to be at the forefront of many
of the major advances in the field. Recently, in the course
of serving as an expert witness in a child custody/parental
relocation case in southern California, the amica curiae brief
of Judith S. Wallerstein, Ph.D. was brought to my attention.
The brief was submitted to the Supreme Court of the State
of California In Re the MARRIAGE of BURGESS (1996) 13-Cal
4th 25. Although claiming neutrality, the brief clearly supports
the mother's request of the court that she be permitted to
relocate without losing her sole physical custodial status.
It is my understanding that this brief was influential in
the court's decision, that the case is being frequently cited,
and the principles laid down therein frequently utilized in
parental relocation cases in California and elsewhere. I believe
that the implementation of the Wallerstein recommendations
is a regressive step that will only serve to compromise California's
good name in one of the most important areas of the law, an
area that most directly affects our next generation.
Although I am in full agreement with many of Dr. Wallerstein's
points, I do not believe that the brief is balanced and that
in certain areas there are serious flaws.
Throughout, reference is made to "research." As
is true in the law, it is very easy for mental health professionals
to invoke "research" to support any position. For
every article that "proves" a point, there can be
found another that will "disprove" the same point.
Social sciences are not "hard sciences" but "soft
sciences," and much looser standards apply when research
articles are assessed for publication.
I am in full agreement with Dr. Wallerstein when she emphasizes
that less important than the actual location of the two parents
is the bonding that exists between each parent and the children.
Accordingly, Dr. Wallerstein recommends that courts should
focus on whether or not a strong bond has developed between
the children and the parent from whom they will be separated.
She cites "research" that suggests that in many
cases the bond is weak or nonexistent, and that there is no
significant loss to the children if the other parent relocates;
the basic principle being that no love was lost, because there
was no love there in the first place.
I am sure that there are situations in which this is indeed
the case. I am sure, as well, that there are many situations
in which there has been strong bonding with the parent who
has been left behind and that the relocation has been significantly
detrimental to the children. The implication of Dr. Wallerstein's
brief is that the usual situation is that there is really
only one parent ("de facto"), the primary custodial
parent, and the parent of secondary importance, with whom
the children have such a weak bond that for all intents and
purposes it is nonexistent. She would lead the reader to believe
that this is the most common situation. I believe that this
is not the most common situation, although it certainly exists.
The more common situation is the one in which the primary
bonding may very well be with the primary custodial parent,
but that the bonding with the noncustodial parent is very
deep nevertheless. Although one cannot measure this bond objectively,
one can easily say that the bonding is very strong with the
noncustodial parent, and that relocation would be very detrimental
to the child because of the disruption of this bond.
I am also in agreement with Dr. Wallerstein when she warns
that geographical chauvinism ("where we live must be
the best place in the world") should not be a consideration
when courts adjudicate relocation requests. However, Dr. Wallerstein
does not mention the chauvinism that often plays a role in
a parent's wish to relocate with the notion that the site
of potential relocation is "the best place in the world."
Were her brief fully neutral and balanced, she would have
extended the same caveat to both sides.
Dr. Wallerstein continues (page 26):
"Therefore, custody should not be revisited when relocation
is proposed, except in extraordinary circumstances when necessary
to protect the child."
If Dr. Wallerstein is correct and the child's bonding is most
often minimal or nonexistent with the parent who has been
left behind, then this recommendation would probably cause
little or no harm. If, however, I am correct, that the more
common situation is the one in which there are varying degrees
of deep bonding with the parent who has been left behind,
although not necessarily as deep as the bonding with the relocating
parent, then much harm will be done. If the courts were to
follow this principle it would be a rare parent whose requests
for relocation would be refused. And that would be done only
under "extraordinary circumstances."
Dr. Wallerstein continues (page 27):
"In the majority of instances, the child's best interest
will favor the move and a continued interest in maintaining
a significant relationship with the non-moving parent will
be addressed by age-appropriate modifications in the visitation
schedule (e.g., school holidays, vacations, etc.)"
This has not been my experience. My experience has been that
in the majority of instances relocation has resulted in progressive
attenuation of the bonding between the children and the noncustodial
parent, visitation "modifications" and adjustments
notwithstanding. I have, of course, seen situations in which
relocation has not caused harm: no love was lost, because
there was no love in the first place. But such situations
are not common when the parent left behind is litigating for
Dr. Wallerstein continues (page 30):
"In addition, some courts have presumed [emphasis mine]
that a mother who has undertaken a demanding program of work
or education in order to create economic resources for herself
and her family, e.g., by becoming a trial lawyer (like Marcia
Clark) or a medical student (like Maria in Case No. 1 in Appendix
B) cannot properly raise a child. These courts have not learned
the lessons contained in the studies of children following
divorce or in the decisions of this Court."
First, I have no specific information about Marcia Clark's
personal life, especially her relationship with her children.
The implication here is that Dr. Wallerstein has some direct
contact with Marcia Clark and her children, and has concluded
that the nine months of grueling work on the O.J. Simpson
case has in no way interfered with her parenting capacities.
I am dubious. I suspect that the enormous amount of time and
energy that Ms. Clark had to devote to that trial--over a
time span of nine months--must have had some negative impact
on her children. I am also dubious about the success story
about Maria (Case Example #1). Women devoted to becoming trial
lawyers and women who are medical students are much better
off having husbands or ex-husbands who live close by who can
share with them the responsibilities of childrearing.
The implication here, once again, is that noncustodial parents
are not really necessary in the vast majority of cases or
the input they can provide is not really meaningful or valuable.
What Dr. Wallerstein is basically saying is that courts that
have "presumed" that these double obligations compromise
childrearing capacity have been wrong, and that "research"
proves them wrong. I believe that the courts' presumption
here has been valid, namely, that combining demanding work/educational
programs with childrearing is highly likely to compromise
childrearing and there is other "research" that
supports this position. I believe, also, that the vast majority
of mothers who have been involved in such double commitments
would agree with me on this and agree, as well, that if there
were a husband or ex-husband who was available and committed,
the pressures on them would be lessened and the children would
do better. We see here, once again, how Dr. Wallerstein has
transformed the minority into the majority.
Now this leads me to a very important point. Dr. Wallerstein's
views here were promulgated in an amica curiae brief and submitted
to a court of law adjudicating a child custody/relocation
dispute. Accordingly, there is a father in the Burgess vs.
Burgess case who is asking the court to transfer sole custodial
status to himself if the mother moved away. The very fact
that the father went to the trouble and expense of going to
court on this issue indicates to me that his bonding with
his child must have been strong and not in the category of
the weak or nonexistent bonding that Dr. Wallerstein would
have us believe is so rare. Her brief, then, is not applicable
to Burgess vs. Burgess. Her brief would have been more balanced
if she noted to the court that the parent who is willing to
litigate the relocation issue is probably not in the category
of having a weak or nonexistent bonding with the children.
I cannot emphasize this point strongly enough.
It is to her credit (page 31) that Dr. Wallerstein states:
"Reasons for a move that are frivolous or advanced out
of anger or a desire for revenge that is calculated to prevent
or substantially diminish a child's contact with the other
parent do not justify the move."
Dr. Wallerstein does not give proper emphasis here to other
inappropriate reasons for requesting relocation such as, lack
of appreciation of the bonding between the child(ren) and
the noncustodial parent, pathological dependency on family
members in the locale to which the relocating parent wishes
to move, and personality problems that interfere with the
parent's ability to adjust to a particular environment, with
the associated fantasy that change of location will somehow
result in more gratifying personal relationships. There are
women whose basic view of a man is that of a sperm donor and
once he has provided these services, he can be dispensed with
entirely. And this may have been the model of her own mother.
Such a view of the husband is often a factor operative in
the wish to relocate. These reasons, in addition to vengeance,
should also be considered by courts when adjudicating relocation
requests. Dr. Wallerstein's brief would have been much more
balanced had she added these reasons to the list of inappropriate
reasons for requesting permission to relocate.
I am in full agreement with Dr. Wallerstein regarding her
emphasis on the traumatic effects of frequent shuttling and
the loss of valuable parenting time that is eaten up by such
shuttling. Dr. Wallerstein recognizes that implementation
of her proposals will expose children to shuttling trauma,
a trauma that they did not previously have to bear. She then
recommends that this untoward effect of relocation can be
reduced by decreasing the frequency of visits and making them
of longer duration. The basic premise, once again, is that
there will be little loss to the children by the move, especially
because it may be accompanied by longer visits to protect
them against the detrimental effects of shuttling. She does
not emphasize shuttling trauma as an argument against the
court's permitting the relocation. Again, we see a lack of
The "Believe the Children" Consideration
Dr. Wallerstein states (Case No. 1, page 10):
"It is disrespectful of the child's humanity to view
the child as a puppet and to attribute the child's responses
to manipulation by adults as if a child had no mind or heart
of her own. Unfortunately, the courts are all too willing
to see the child's responses as reflecting adults' manipulation."
All individuals, regardless of age, are suggestible and can
be manipulated, and the younger the person the more likely
this can take place. Children are extremely suggestible, highly
manipulatable, and can be programmed to say and believe anything
that the adult manipulator wishes to inculcate into the child.
It is extremely common in divorce cases for each parent to
attempt to induce in the child criticisms of the other parent
in the hope of enhancing his or her position in the course
of a custody dispute. If courts were to follow Dr. Wallerstein's
advice, they would automatically assume that a child's professions
of affection/hate are entirely reality based and could not
be the result of adult manipulations. I believe that most
judges, lawyers, and mental health professionals involved
in child-custody disputes will readily attest to the fact
that manipulated children are widespread and that inappropriate
professions of hatred are commonly induced against parents
who were loving and tender prior to the onset of the child-custody
dispute. Courts who take seriously Dr. Wallerstein's advice
here will be making erroneous decisions in many cases.
Consistent with this position, Dr. Wallerstein states (page
"Especially at the time of a contemplated move, the court
should be responsive to the child's voice, amplifying it above
the din of competing parents. Only in this way can it ascertain
and respect the `best interest of the child.'"
It is unfortunate that Dr. Wallerstein is still waving the
old "believe the children" banner that has caused
so much grief in so many families. I am not claiming that
we should ignore entirely what children have to say in divorce
disputes; I am only saying that one must give consideration
to the fact that children are children, that they can easily
be manipulated, and that when considering their comments about
relocation the manipulation/programming element must be given
serious consideration. Children's voices should not be given
more consideration than those of the parents'. It serves the
best interests of children to do what is best for them, not
what they profess is best for them. Every good parent knows
this and the younger the child, the more important this dictum.
The Child's Relationship with the Noncustodial Parent
Dr. Wallerstein states (Case No. 1, page 12):
"The child's relationship with the remaining parent does
not necessarily deteriorate with the geographical move."
I agree that the child's relationship with the parent who
remains behind does not "necessarily deteriorate."
The real question is what is the more likely outcome of the
relocation? The answer, in a vast majority of cases, is that
it will deteriorate; this is not necessarily so--just highly
probable. I agree, also, that it is not necessarily the case
that one will contract AIDS if one has sexual relations with
a person who has AIDS. However . . . I need go no further.
Wallerstein concludes with two case studies. Both support
a woman's request for relocation. Wallerstein does not provide
an example of a case in which the courts were justified in
not granting permission for relocation. This is yet another
example of the bias in her brief.
Case No. 1 is a "tear jerker" in every sense of
the word; in fact, I, myself, choked up when reading this
story. It was the story of a Mexican-American woman whose
life aspiration was to be a doctor. Her daughter Susan was
very strongly bonded to her and her ex-husband wanted primary
custody if the mother went off to medical school. This "heart-rending"
saga is dramatically detailed in such a manner that it would
only be the most heartless or sadistic court that would turn
down this mother's request for relocation. The story ends
with mother in medical school as the primary custodial parent
with father left behind working in his grocery store. The
tale presumably ends with everybody "living happily ever
after": the child doing very well in all realms and the
mother presumably fulfilling her academic obligations in medical
school. It may very well be that this child's mother was able
to handle well the rigors of one of the most demanding educations
known to humanity in combination with childrearing, which
is also one of the most demanding vocations known to humanity.
It may be that this mother, like Marcia Clark (as Dr. Wallerstein
describes her), handled both of these situations without compromising
anything in either realm. I do not believe, however, that
the vast majority of women would be able to achieve this.
Once again, Dr. Wallerstein is presenting the minority as
if they were the majority. In the second case, as well, there
were compelling reasons for the court to grant the mother's
request for relocation. As mentioned, the brief would have
been more balanced if Dr. Wallerstein had provided a case
study that demonstrated the detrimental effects to the child
of the court's misguided decision to allow relocation.
In her brief Dr. Wallerstein quotes from the ruling of Associate
Justice Donald B. King of the California Court of Appeal,
who is quoted by Mahan in the May 1994 issue of California
"It may be that she [Dr. Judith Wallerstein] knows more
about the effect of divorce on children than anyone in the
If this is indeed the case, this does not speak well for all
the other people in the world, especially legal and mental
health professionals, who know quite well that relocated parents
often leave behind deeply committed former spouses who suffer
enormous grief and loss as they watch the progressive attenuation
of the parent/child bonding that was the direct result of
the court's ill-advised decision to allow relocation.
As I mentioned at the outset, I consider the Burgess decision
to be setting a dangerous precedent, a precedent that if followed
will bring about significant pain and grief to many loving,
dedicated fathers and their children. It is a regressive step,
unbecoming to the State of California, a state generally recognized
as being at the forefront of important advances in the field
of custody-visitation litigation.
In re Burgess v. Burgess, 13 Cal 4th 25, (1996)
Wallerstein, J.S.: Amica Curiae Brief re Burgess v. Burgess.
Filed Dec. 12, 1995, Supreme Court, State of California.
Richard A. Gardner, M.D. is in private
practice in Cresskill, New Jersey. He also serves as Clinical
Professor of Child Psychiatry at Columbia University, College
of Physicians and Surgeons in New York City and is an attending
psychiatrist at the Presbyterian Hospital in New York City.
Address correspondence to: Richard A. Gardner, M.D., 155 County
Rd., P.O. Box 522, Cresskill, NJ 07626-0522.