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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?"

In Gonzales's case, it appears that you can't move to Aurora. Gonzales and Wetmore never married, but shortly after Nathan's birth in November 1992, Wetmore filed for custody. By 1994, both sides had agreed to give sole custody to Gonzales, though Wetmore was granted regular visits. During the next two years Gonzales moved five times. Three of those moves, including a brief stay with her sister, took place within the same Aurora apartment complex, where she lived until the end of 1994. The fourth move was to an Aurora townhome she shared with another man she says she intended to marry. When that relationship ended a year later, she moved a fifth time, to her grandmother's house in Montbello.

However, it wasn't a move but a two-week vacation that touched off the legal battle. Coming off the soured relationship with her would-be fiance and pregnant by him with her third child, Gonzales took a trip to Tucson to visit her mother and sort things out. Under the provisions of her custody agreement, she couldn't move out of state without either the court's or Wetmore's consent. Though the agreement said nothing about traveling out of state, Schwartz nevertheless found Gonzales in contempt after her visit to Tucson and granted temporary custody to Wetmore until a hearing could be held on his motion to change custody permanently.

Schwartz made her contempt ruling in part because Gonzales had called Wetmore from Arizona and told him that she intended to move there for good. Gonzales admits making the comments and says she did briefly think about moving to Tucson. But she adds that she wouldn't have actually packed up and moved without working out an arrangement with Wetmore or the court beforehand.

"I can see from the noncustodial parent's point of view--she moved, and without notices," Allen says, referring to the Arizona trip. "[But] there are remedies that are less than change of custody. I don't feel that her behavior warrants a change in custody."

And anyway, says Gonzales, Nathan showed no problems during the Arizona vacation or the five moves. "When I moved in with my fiance, Nathan looked forward to it. He never showed anything." During the Tucson trip, she says, the boy was "very talkative and happy."

Which is why Gonzales and Stern are still scratching their heads over a custody evaluation prepared in March 1996 at the request of both parties by psychologist Wendell Osorno. "The evaluator said the child had no developmental problems," says Stern. "Then he says his developmental needs aren't being met. He said a lot of things like that that were entirely contradictory."

Osorno's report did seem to vacillate on some critical points. He claimed, for instance, that Gonzales had several important strengths as a parent, but he also said she didn't care for Nathan properly. He noted that Gonzales had several parenting weaknesses, but then added that the boy was "especially" bonded to her.

According to Osorno's report, "There are no indications nor substantiated evidence presented of Nathan having any developmental problems. Nathan appears to be a physically happy and emotionally well adjusted three-year-old boy." However, when asked to file a supplemental report, Osorno changed tack. "Nathan's emotional and developmental needs are not being adequately met by his mother," he wrote.

Osorno's initial recommendation granting custody to Wetmore was based on a legal standard known as "best interest": Osorno reasoned that because Wetmore had a steady job, had lived in the same home for a good period of time and had subsequently married another woman, life with him was preferable to Gonzales's frequent job and home changes. But the correct standard, and the one he was asked to use for his supplement, is known as "endangerment." Under that standard, the child's emotional development must be "significantly impaired" to warrant a change in custody.

"The endangerment standard is a more stringent standard," says Denver family law attorney Dorothy Thomasetti. "When you have an endangerment standard, you have to prove it's dangerous to the child physically or emotionally. You can't speculate. It's based on the here and now."

Though he won't say whether Nathan really was "significantly impaired," Osorno defends his evaluation. "When my observation took place, she was in the basement apartment of her sister," he says of Gonzales. "She was in a difficult situation, not having the wherewithal to provide a stable support system to provide for her child at the time. She had her oldest son being taken care of by her mother in Arizona. She didn't have her own home, she was unemployed, and she was pregnant."

Adams doesn't deny that her daughter switched jobs a lot, but she maintains that it was all part of an effort to improve her life. "She worked in a doctor's office primarily, and whenever something looked like a better opportunity, she'd take it," Adams says. "Wherever you can get a little better place, a little more money, you just try to get them into a better situation. The parent has to have the right to make those decisions. No one should be coming along second-guessing her."

"If [Osorno] is right," adds Stern, "and all those things have caused significant impairment, why did Dr. Osorno say there was nothing wrong with the child?"

But Osorno shrugs off Stern's criticism. "The judge has to make that decision," he says. "My take on this is that Mr. Stern was upset in losing the case. He was upset with the judge, upset with the other attorney, upset with me. My take is that here's a young, inexperienced attorney that had a personal stake in this situation." (Stern is 39 and has practiced law for eight years.)

Gonzales, who has since moved again--to an apartment complex in southern Aurora--and taken a job as an office clerk in the Denver Tech Center, says she's still angry over the court's decision to take Nathan away. She says she's the one who did all the dirty work: "I potty-trained him, taught him his colors, even his name."

She says Nathan at first resisted having to go live with his father. "He was crying, clinging to me," she says. "I'm supposed to be his protector, and I'm having to pull my child off to hand him to another person he doesn't want to see."

Yet according to Schwartz's instructions, any signs of regression on Nathan's part will not result in Wetmore losing custody--only in decreased visits from Gonzales. Next March Gonzales can try to get the child back by filing a motion in court, but she'll have to prove the boy has suffered emotional harm in his current environment.

In that regard, Gonzales may have one thing going for her. Since gaining custody, Wetmore has divorced his wife and packed up and moved again himself--between addresses in Aurora.

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T.R. Witcher

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