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Packing It In

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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."

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T.R. Witcher

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