The New York State Court of Appeals issued a ruling last week that should be of interest to every divorced person in America who is still participating in the business of raising children. Ruling on behalf of Broadway lyricist George David Weiss, the court said that his former wife Rosaly, who has custody of their son, could not move from her Westchester home to Las Vegas because she would be disrupting a longstanding and successful visitation arrangement between her son and his father.
On the face of it, this decision might seem like yet another winning round for a man engaged in a power struggle with his former wife. "What was involved," says Irwin Fingerit, Mrs. Weiss' lawyer, "is can a woman live her own life, do her own thing, pursue her own happiness, or is she subject to the limitations of the geographical area where the noncustodial parent resides. Since most custodial parents are women, the women are up in arms over this case. The wife feels like a hostage in that she must live in the area close to the father so the child is available for visitation."
There is no question that the court's decision puts a crimp in Mrs. Weiss' life style, but there is also not much question she was prepared to put a certain crimp on her former husband's. According to Fingerit, she did not want to stop visitation, but to alter it so that her former husband could fly to Las Vegas to visit one week out of each month. The child would also spend five weeks in the summer at his father's home in New York. But the court, speaking on the importance of children having continuous access to both parents, found she did not have a compelling reason for moving to Las Vegas. In so doing, the judges have helped draw a reasonable line in the continuing search for ways to balance the interests of children and spouses involved in divorce.
The original divorce agreement between the Weisses contained a clause giving both of them the right to live where they want to. But it also contained a clause outlining generous, weekly visiting privileges for Weiss, who saw her son, now 11, whenever he could. "There is a very strong relationship," according to Aaron Weitz, who represented George Weiss. Then Rosalyn Weiss announced her intention to go to Las Vegas to see if she could resume her singing career, Weitz said.
"Mr. weiss insisted all along that there was no compelling reason for her to move to Las Vegas. He offered to take Bobby and keep him for any length of time she wanted to go and try her hand in Las Vegas and said that if she came back, then Bobby could return to live with her and if she stayed, they they'd have to sit down and work something out. But she insisted Bobby go with her right from the start."
A trial court originally agreed with Mrs. Weiss, who said she was having a hard time making it in Westchester County and thought she would improve her life and therefore that of her son's by moving. An appeals court overturned that ruling, and in upholding that apellate decision last week, the state's highest court shifts the burden to the custodial parent of proving that he or she has a compelling reason to move out of the state. The distinction is subtle, but important. New York courts have ruled in favor of custodial parents leaving the area for reasons of health, remarriage or employment. While the term compelling is useful, it too may need further defining. Fingerit, for example, believes that even if Mrs. Weiss gets a job in Las Vegas she will have to demonstrate that it is a unique one that can only be found there. "The problem I have is if someone is going to take a job, it's not going to wait six months until the issue is litigated," he says.
Perhaps the most significant aspect of the Weiss decision is that New York's highest court set forth as a matter of social policy the belief that visitation is a right of the child as well as of the noncustodial parent. Dr. Doris Jonas Freed, head of the American Bar Association's child custody committee, calls the decision "vitally important. . . . It's a vindication of those states that have declared in statutes or preambles to their constitutions that after divorce it is in the best interests of children to have frequent access to both parents either by way of joint custody or sole custody with generous visitation rights to the other parent.
"Separation or divorce need not be the end of a family life. It's a different kind of family life. The child is entitled to have the affection, discipline and training of both parents. . . . In my own practice, I've seen parents who will pass up a very good professional job opportunity out of state because of the fact he or she wants to keep the ongoing relationship with children that had been working well or had just been worked out. I've heard mothers say it and fathers say it. Children today, when a custodial arrangement is fair, are apt to think they have two homes. And I think that is vital to the maturation of the child without the trauma that used to go with practically every divorce."