STEVE INSKEEP, host:
Many family court judges say this is one of the hardest decisions they have to make: They decide whether to allow a divorced parent to move out of town with the kids when the other parent objects.
The decisions were hard enough back in the days when one parent got sole custody and the other got visitation. Today, more and more cases end in joint custody, so courts are struggling with what to do.
NPR's Tovia Smith reports.
TOVIA SMITH reporting:
They say the custody cases that end up in court are the ones that have no good answers. Consider the case of a mom who shares custody of her two young boys with their dad. They all live within 20 minutes of the boy's school, and the boys trade off, one week with Mom and one with Dad.
Now, imagine Mom needs to move. Maybe she has to take care of an ailing parent. Maybe her company transferred her, and if she doesn't go she loses her job and her pension. Or maybe, like Betsy Shanley Coleman, she's remarried, with a new baby, and needs to move to be with her new husband.
Coleman asked the court for permission to take her boys about 100 miles north of her home outside Boston, but a judge said no.
Ms. BETSY SHANLEY COLEMAN: When did it become okay in the U.S. to say you can't ever move? If you want to keep your kids, you can't move. Are you violating people's Constitutional rights?
SMITH: But ask Coleman's ex, Jim Mason, and he says it would be wrong to suddenly uproot two young boys and move them so far from their father that he could no longer be involved in their daily lives.
Mr. JIM MASON: It would have turned me into a Disney dad where, you know, you're just participating on weekends or vacations, and that wasn't what I thought was going to be best for my boys.
SMITH: Mason's case is now before Massachusetts's highest court and could yield one of the nation's first high-court decisions on what's become a new dilemma for judges.
It used to be that courts would almost always allow divorced moms to move, thinking that if Mom was the primary caretaker, keeping her happy would ultimately benefit the kids as well. But with the growing number of cases of Mom and Dad sharing custody, and with new research showing the importance of kids staying connected to both parents, many courts are having second thoughts.
Duke University Law School dean, Katharine Bartlett:
Professor KATHARINE BARTLETT (Dean, Duke University School of Law): This is a very fluid area of the law and the standards have been moving all over the place.
SMITH: Bartlett says many judges are beginning to raise the bar and only allow moves if they're in the kid's best interest. But, she says, there's no consensus on how to calculate best interest.
For example, is Mom's new job and extra $20,000 in salary worth cutting the kids' time with Dad, and if so, by how much? What if every other week becomes every other weekend? How about if Mom makes an extra $50,000 a year and gets flex time and gets to bring the kids closer to their grandparents and cousins? Now does that justify the time lost with Dad?
Or what if, as in Betsy Coleman's case, Mom has to move so she and her new baby and her new husband can be together?
Charles Kindregan is a professor at Suffolk University Law School.
Professor CHARLES KINDREGAN (Professor of Law, Suffolk University): It's not like you can feed all this stuff into a computer and get a print-out saying, okay, you can move or you can't move. There's no magic bullet for this and there is no simple answer.
SMITH: Father's rights groups say, courts ought to start with the presumption that kids cannot be moved away from a parent unless there's a really compelling reason, and Ned Holstein, from Fathers and Families says, that reason has to be more than just a better job.
Dr. NED HOLSTEIN (Chairman, Founder, Fathers and Families): The two things that matter most to kids are not what furniture they have or what house they have or even which school they go to. The two things that matter most are called Mom and Dad. And they need to be able to maintain those bonds.
SMITH: But others say it's unrealistic and unnecessary to tie a divorced parent down for 12 or 18 years. As attorney Pauline Quirion argues, moving out of town doesn't necessarily ruin a relationship.
Ms. PAULINE QUIRION (Attorney, Greater Boston Legal Service): I think with modern technology, we're not in that sort of horse and buggy days. I mean, now you can get cheaper plane fares. You can communicate by e-mail, webcast. I mean, you can still be actively involved in your child's life.
Mr. CHUCK MASON: Hi, sweetheart. I can see you.
Mr. MASON: Did you have a good day at school?
SMITH: In his home office in suburban Virginia, Chuck Mason waves to a color image of his 10-year-old daughter Arielle, whose video conferenced live on his computer from Colorado, where she lives with her mom.
ARIELLE: Can I show you something real quick?
Mr. MASON: Yeah, I'd love for you to.
SMITH: Twice a week, with tiny little cameras perched on their computers, they hook up for a face-to-face virtual visit.
Mr. MASON: I'm going to take my jump.
SMITH: They can play checkers.
Mr. MASON: Are you prepared to lose?
ARIELLE: Oh, dream on!
(Soundbite of laughter)
SMITH: They can trade pictures.
ARIELLE: Oh, that's pretty!
Mr. MASON: Thank you.
SMITH: And Mason says he can do virtually everything online that he does during his four annual in-person visits with Arielle - from listening to her play the recorder, to checking out a new tooth.
Mr. MASON: What's wrong?
SMITH: Or, as it happens today, a bloody nose.
Mr. MASON: Bring your nose closer to the camera so I can see it. Oh, no! Sweetheart, that looks like the cave that Tom Sawyer got lost in.
(Soundbite of laughter)
SMITH: When he used to try to visit with Arielle on the telephone, Mason says it was like pulling teeth. Now, he says he has to push her off the computer.
Mr. MASON: Have a good time at the concert.
ARIELLE: I'll call you back later.
Mr. MASON: Bye beautiful.
Mr. MASON: Thank you so much.
ARIELLE: You're welcome.
SMITH: But many worry that judges will begin to see the so-called virtual visits as a substitute rather than a supplement for the real thing, and that may make judges more inclined to allow parents to move.
Ira Ellman is a professor at the University of Arizona Law School. He agrees that kids would be better off if courts tried harder to keep both parents close. To do that, Ellman says, courts ought to consider not just whether Mom, for example, really needs to move, but also whether Dad is able to follow.
The question becomes, who would have an easier time making the sacrifice to keep everyone together.
Professor IRA ELLMAN (Professor of Law, Sandra Day O'Connor College of Law, Arizona State University): In a lot of these cases we can see that, at least for one of the parents, the burden is not that great. And if that's the case, then the court order - tell that parent, it's up to you; because expecting one or the other parent to make some sacrifice strikes me as perfectly appropriate.
SMITH: Ellman also thinks, in cases where a parent doesn't have a compelling reason to move, courts ought to be more willing to play hardball - basically, telling a parent, if you do insist on moving, the court will switch custody to the other parent.
Prof. ELLMAN: It's a case in which they're not going to call your bluff, they're going to stay put. And maybe this weapon, you know, used very judiciously, is not so crazy, because you might end up producing a better result for the child in a bunch of cases.
SMITH: It's a risk many judges are loath to take. After 25 years in Massachusetts family court, retired judge Edward Ginsburg says these are some of the most high stakes and daunting decisions he's every faced.
Justice EDWARD GINSBURG (Retired Judge, Massachusetts): They're impossible. They're impossible. The hardest cases. But you can't split the baby, so you've got to do something.
SMITH: As a judge, Ginsburg says, he always took comfort knowing that if he made a wrong decision in a case of child support, for example, it could be fixed later on. But in this kind of case, he says, once you move a child away from a parent, there's no going back.
Tovia Smith, NPR News, Boston.
INSKEEP: To find out where your state stands on the issue, go to npr.org.