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Packing It In

Single mother Dana Gonzales moved five times around the Denver metro area with her young son Nathan between 1993 and 1995. With each move, says Gonzales, she was trying to provide a better life for herself and her son.

But Nathan's father, Anthony Wetmore, saw something else in Gonzales's itinerant ways: a legal loophole. After Gonzales's fifth move with Nathan, Wetmore filed a motion to gain custody of the preschooler. And though a court-appointed evaluator determined that the boy was "happy and healthy" under his mother's care, Wetmore prevailed, with a claim that has raised eyebrows in the local legal community. The father's winning argument: that Gonzales simply moved around too much.

"All the changes of residence were in the city of Aurora," says Gonzales's attorney, Joe Stern. "This is a child who hasn't even gone to school yet, so he's not changing schools. It's the most incredible decision imaginable. It speaks very poorly for our court system. This particular decision, in my opinion, was unjustifiable."

It's a decision others find strange as well. "I don't like it--I don't like it at all," says Denver divorce attorney Robert Allen. "On the surface, it seems to be inadequate to sustain what's in the best interest of the child."

The court's decision, handed down in April 1996, said Nathan (not the boy's real name) would be harmed by Gonzales's constant moving. Arapahoe County District Magistrate Patricia Schwartz also wrote that Gonzales had "continued instability with employment" and did not have "a realistic view of the financial situation she is in," pointing out that at the time, Gonzales was bringing home only $900 a month.

"Then why did I take care of my children on my own?" asks Gonzales, a 26-year-old office worker. "Why was I able to pay my rent and buy their clothes and buy their food? Each move was an improvement, not a setback." Gonzales now lives in Aurora with her two other sons.

Wetmore, 24, declined to be interviewed for this story, and his attorney, Tracey Porter, did not return several phone calls. Stern, however, insists that questions about Gonzales's job status and money-handling abilities were incidental to Schwartz's decision. He acknowledges that when the suit was filed, Gonzales's life was uncertain enough that she had sent her oldest son to live with her mother in Arizona for a year. But he insists that the "moving was the heart of the case. It's because she changed residences; that's the heart of their argument."

This past July, the Colorado Court of Appeals upheld Schwartz's decision, writing that "the evidence supports a determination that the child was placed at substantial risk of behavioral problems and regression in his development." The only evidence presented of that regression, however, was that the boy was shy around strangers. And even the appellate court admitted that the original court record "contains sharply conflicting evidence. In addition, the evaluator's expert testimony may be read as inconsistent in some respects...We may well have reached a different conclusion based upon this evidence."

Gonzales's mother, Susan Adams of Tucson, thinks the district court's decision was foolish. "If you're basing a custody decision on the fact that a situation changed and a person had to do something different than what they planned to do, you're saying she doesn't have the right to make decisions on her own behalf to take care of her life," Adams says.

Stern, who admits he has gotten more involved in this case than a lawyer probably should ("I don't see how an attorney could pursue this case without an emotional attachment") claims that Schwartz's decision will set a precedent for other custodial parents who move frequently. A lawyer would be "perfectly in his rights to cite it as a precedent for the courts to follow," he says. "The decision has placed the burden on [custodial parents who move] to show that they are not providing an unstable environment."

The Court of Appeals decision was unpublished, meaning that the court likely did not view it as groundbreaking, so there is some debate as to whether it will actually create a precedent. "What has not been said is, 'We support the proposition that too-frequent changes of address are grounds for a change of custody,'" says divorce attorney Allen. "I feel that would be too much of a stretch. This case in no way forecasts opinions for publication in this narrow area."

But Denver child-custody attorney Jon Lozow disagrees. "Lawyers will find these cases and cull certain language out of them, so there's precedent, even if it's non-published," says Lozow. "As one who does domestic stuff, if I have a case where somebody is moving around, I try to argue that moving around is harmful. Still, how many times is too many, and where can you move to?"

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T.R. Witcher