Relocation Litigation Strategies: Social Science & the Law

In Press: Brown and Morgan, eds.2010 Family Law Update (Wolters Kluwer Law & Business 2010)

Relocation Litigation Strategies: Social Science & the Law

Jan Marie DeLipsey Ph.D.[1]

Introduction

The Evolution of the Relocation Question

Relocation Litigation Strategy

Exposing Misleading Social Science Research

The Scientific Method & the Daubert Standard

Wallerstein: The Longitudinal Study in Light of Daubert

Legal Relevancy & Social Science Generalization

Daubert Reliability & Social Science Validity

Legal Reliability & Empirical Testing

Legal Reliability, Peer Review and Publication

Legal Reliability& Known Error Rate

Legal Reliability & General Acceptance

Summary: Daubert Standard & Wallerstein’s Longitudinal Study

Wallerstein et al Representations of Other Research

Centrality of Two Parents

The Impact of Moving

Warshak: Summary Opinion

The Braver et al Study

Relocation Law

California

Burgess

LaMusga

Georgia

Bodne v. Bodne

Texas

Lenz v. Lenz

Colorado

Relocation : Case Law & Statutory Summary

Litigation Considerations

State Statutes, Public Policy & Case Law

Proof Checklist: The Proponent

Proof Checklist: The Opponent

Conclusion

Introduction

Relocation. Hotly questioned and contested, rarely understood and resolved. Amidst this backdrop oflegal and social science turmoil, mis-information and confusion, a generation of America’s children of divorce and relocation have now grown up traveling betweendifferent cities and different states. Relocation state statutes and caselaw have been as varied as the state bird or flower. Some state case law and statutes presume in favor of relocation, some presume against it. Some state statutes and case law test the merit of relocation from a child’s best interest standard, some test itfrom a custodial parent’s interest standard, while otherstest if from an inventory of statutorily defined factors. Depending on the state, the burden of proof may weigh upon the opponent, the proponent,or be split. Then, the cherry on top, is Texas. In Texas, juries hurdle into the middle of the fray by answering a specific jury question regarding geographical restriction of a child’s residence.

Now adults, this traveling generationoffers new insights into the relocation question for today’s children of divorce, their parents, mental health professionals and family law attorneys. This chapter is written with a view to guide the litigating family law attorney in sorting out the problems of past caselaw and social science research in order to more effectively represent the parties, whether the opponent or proponent, to relocation.

The Evolution of the Relocation Question

Because of the dramatic evolution of the American family over the past few decades, the relocation question must be viewed in historical context. This discussion of the relocation question could go back to two hundred years ago. Then, men were the only custodians of children because custody was coupled to inheritance and property. It was not until the twentieth century that mothers were considered viable custodians of young children. By the 1960’s and early 1970’s most states had swung the other direction to a maternal preference (tender year’s doctrine.) But it would be more practical and certainly more relevant to limit this examination to custody and parenting changes over the last thirty years. As custody and possession have evolved and changed, so too, have judicial answers to the relocation question.

In the late 1980’s and early 1990’s, by statute and by public policy, most states across the U.S. adopted co-parent models for child custody and possession. By the early 1990’s, forty-five states had passed gender-neutral custody statutes. These models presumed that a child’s best interests were served by having frequent contact and acontinuing relationshipwith both parents.

The waves of radical social changes that washed over this country in the 1960’s were reflected in similar changes in laws and public policy.A United States Supreme Court decision regarding equal protection under the Fourteen Amendment preventing courts from gender discrimination[2], the tremendous efforts by the U.S. government to have all states improve financial support of children, legal confirmation for equal rights,drastic shift in gender roles, increased presence of women in the work force and the fading stigma of divorce or children born outside the legal protections of wedlock working together paved the way for gender neutral custody laws across the United States. Logically, co-parenting quickly followed.

Even though the concept of joint conservatorship emerged in family law across the United States in the 1980’s, joint parenting was not held as a legal presumption by the majority of states until the mid 1990’s. Understanding relocation in this historical context, it is difficult to know to what degree relocation was a significant legal question prior to the adoption of the co-parenting model.

Prior to the co-parenting model, mothers generally held custody and fathers generally had “visits.” These visits were usually confined to a few weekends a month and summer vacation. Several decades ago, there was little debate that a child’s welfare was closely tied to that of the mother. It was this person who usually was and who was socially preferred as the active, significant caretaker under the circumstances of divorce.

Decades ago, if a mother desired to relocate, she was more often than not remarried. And, more often than not, she was rarely challenged. The few cases that were challenged were more often than not, strong cases for fathers. And, finally, when there was an instance of geographical restriction by the court, usually it fell within thatvague domain of “judicial discretion.” The interaction of these various factors likely kept the relocation problem below the radar screen until the constellation of the American family experienced a qualitative shift.With this shift, children of divorce achieved the privilege and the permission to experience two active, functioning caretakers. After fathers won and exercised the legal presumption to be an active parent, relocation problems seemed to increase exponentially. This chain of events has led to somber growing pains both in the legal and social science communities.

Relocation Litigation Strategy

There is no question that the structure of the American family has shifted and changed at a great pace over the past few decades. Unfortunately, these changes have outdistanced research and the law resulting in misleading social science evidence, contradictory statutes, and misinformed caselaw. Consequently, in order to successfully propose or oppose relocation, the family law attorney must launch a two prong litigation strategy. This strategy should exposethe misleading social science research evidence and separate the chaff from the wheat of the caselaw, particularly state Supreme Court decisions.

Regrettably, controversial social science evidence tainted the case law during this single custodial parent to two parent transition and it continues to pose challenges to attorneys today. Although there are several instances of flawed social science evidence in the caselaw history of the relocation question, clearly themost problematic case was the California Supreme Court’sBurgessdecision.[3]

The Burgess decision was largely driven by a social science brief by Judith Wallerstein, a psychologist. [4] In simplistic terms, the Burgess decision held that the primary custodian had the presumptive right to move and by expanding the best interest of the child standard to include the stability and interests of the custodial parent as well. It is essential that the litigating attorney, whether proposing or opposing relocation, understand fully the problems with the Wallersteinbrief in Burgess because it will inevitably surface as an issue in some form or fashion. It has shaped case law, policy and statutes; a number of landmark cases cite its authority; and a number of mental health experts continue to regurgitate it from the witness stand. The material in the Burgessbrief re-surfaced in Wallerstein’s et al brief in LaMusga, a 2004 California Supreme Court Case.[5] In LaMusga, Wallerstein reaffirmed her position in Burgessandmade a specific recommendation to the court that a mother and child be allowed to relocate from California to another state.

The proposing advocate may question why it would be necessary tocritically evaluate this body of research because it supports relocation. The answer is surprisingly simple. Litigation strategy built upon a weak foundation will crumble and fail.

Exposing Misleading Social Science Research

Subjective clinical experience falls short of the specialized knowledge worthy of admission in a court of law. Reliable social science research should satisfy the components of the scientific method. Problems caused bythe admission of unqualified evidence relying merely on anecdotal data (subjective clinical experience) have been addressed in the legal arena through Daubert and various Daubert-like state statutes which set minimum thresholds of legal relevancy and legal reliability.[6]

In order to expose misleading or unreliable social science, the family law specialist must be conversant in Daubert in an informed way. The advocate must also be able to understand and be conversant in the conceptual aspects of the scientific method. Then, the attorney will be equipped to educate the court about the defective evidence which has driven case law as well as build a firewall against the admissionunreliable evidence. If the attorney takes the time to help the court understand how key research concepts translate to Daubert principles, then the court will be able to grasp the scale of the disservice poor research has visited upon the bar and be equipped to sift through informed versus misinformed case law.

The Scientific Method & the Daubert Standard

The Supreme Court held that federal trial judges are “gatekeepers” of scientific evidence andpromulgated a two-prong test of admissibility to assistin determining whether proffered expert evidence was both relevant and reliable.

These two prongs of the Daubert standard, legal relevancy and legal reliability, mirror the broad aspects of the scientific method.[7] The scientific method is a controlled procedure of investigation wherein cause and effect relationships are tested. The usual process of the scientific method includes reviewing existing empirical research, developing a hypothesis, testing the hypothesis, analyzing data and interpreting (generalizing, i.e. applying) the findings.

The first Daubert prong, legal relevancy, refers to whether or not the expert’s evidence “fits” the case facts. Legal relevancy would be equivalent to social science “generalization.” Generalization refers to the degree of “fit” between a research sample and the real world population.

Suggested non-exhaustivechecklist factors of the second Daubert prong, “legal reliability,”are empirical testing (falsifiable, refutable, and testable), subjected to peer review, known or potential error rate, the existence and maintenance of standards concerning its operation, and general acceptance by a relevant scientific community. These specific Daubert factors are counterparts of the specific procedures of the scientific method; the development and testing of a hypothesis (empirical testing), reliable analysis of data (error rates and existence and maintenance of standards concerning its operation), interpreting and applying data (peer review.) General acceptance by a relevant scientific community confirms the quality of the research (also peer review) as well as establishes the strength of a research finding by its reasonably consistent occurrence (replication.)

The Supreme Court later amended the Federal Rules of Evidence, Rules 701 and 703, to conform to the Daubert trilogy[8] and in Rule 702 included additional requirements which stated, "1) the testimony is based upon sufficient facts or data 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case."[9]

Wallerstein: The Longitudinal Study in Light of Daubert

The Burgess case involved a custodian (mother) several years after divorce who wished to relocate with the children to another state. The non-custodial parent (father) opposed the relocation of the children. In the 1995 Amicabrief to the California Supreme Court, an expert (Wallerstein) put forth the opinion that the custodial parent was the central influence in a child’s post-divorce adjustment and advocated for a presumption in favor of relocation. The brief purported to be an impartial summary of social science research regarding divorce and subsequent adjustment of children.[10] Wallerstein referred to the primary custodian and child as a “family unit” and viewed the custodial parent as the “primary psychological parent.” She thereby discounted that there was any significant influence from the non-residential parent on a child’s post divorce adjustment. Wallerstein held that a child’s post divorce adjustment was intimately tied to the stability and continuity of the family unit (mother and child.) This family unit did not include the non-custodial parent. Wallerstein also offered an expert opinion that there was no evidence from her own work that either visiting a non-residential parent or the amount of time spent with this parent was causally related to a child’s post divorce adjustment.

Wallerstein’s stated that her expert opinions were based on her extensive, personal work withwith families of divorce and on her review of the professional literature.

Legal Relevancy & Social Science Generalization

There are legal relevancy (generalization) problems with the data and conclusions drawn from Wallerstein’s personal work with families of divorce. The cornerstone of the Wallerstein brief, the California Children of Divorce Project, was a longitudinal[11], descriptive studyinvolving sixty families of children of divorce from Marin county, California. Wallerstein spearheaded this project and followed these families, observing and writing about them, for about twenty-five years.

As stated earlier, in the world of social science research and the scientific process, “generalization” is the degree of “fit” between the research sample and the real world of people. The legal mirror concept, of course, is “relevancy.” Since the whole of a population cannot be tested, a sample of that population is tested. Then the findings, if significant, can be “generalized” to the whole population. In order to appropriately generalize a study’s findings to the whole population, the representative research sample used in the study must fairly and accurately reflect the population as a whole. Social science research, ethical and practice guidelineswould require a research sample to be representative of the population to which the study findings are applied.

The families in the longitudinal study were recruited through referrals, ads and flyers. Families were offered counseling in exchange for participation in the study.[12] Nearly half of the men and women of this mostly Anglo, upwardly mobile group presented with notable mental health issues. These problems included chronic depression, suicidal ideation, social impairment and difficulties with anger and sexual impulses.[13] Slightly less than a quarter of these individuals evidenced histories of marked mental illness ranging from paranoia to severely handicapped coping skills.[14] Even from a layperson’s perspective, at face value this sample of sixty families was very troubled.

The project began somewhere between 1969 and 1971 and included families divorced in the 1960’s and 1970’s. The families were studied during the first year following separation with follow-up contacts were made at 18 months, five years and ten years.[15] The findings from this study were published at intervals in books and in several professional articles.[16] Wallerstein asserted that the foundation of the brief was the results of twenty-five years of psychological research and study.[17] It is important for the reader to remember that this foundation was in fact, this one study conducted over a period of time.

Placed in the proper historical context, there was no joint custody model in the 1970’s. And, there certainly was not a legal presumption of joint custody. In fact, the custodians of the families of children of divorce in this ongoing study were all mothers. In addition, in the Burgess brief itself, Wallerstein noted that she was appointed to a California task force on family equity in 1986 and recommended to the California legislators that a provision be enacted into law that clarified “that joint custody was not (emphasis added) the preferred custodial arrangement in California, but an option to be considered.”[18]

Nearly two-thirds of the study’s families were remarkably troubled. This skew may have resulted from the offer of free counseling in exchange for research participation. Families doing well, coping well, cooperating well or able to afford their own therapy may have been unlikely to respond to the research solicitations. In the brief, Wallerstein did not address the nature, duration or impact that counseling had with these troubled families. In social science terms, there appears to be a significant “selection bias” in this sample as it is notrepresentative of most families facing divorce either then or now.[19]