"We Are Not Crows"—and yet ….

A Louisiana statute applies when a parent who shares custodial rights moves with a child more than 75 miles from the child's principal residence -- is that as the crow flies, or as MapQuest calculates?

|The Volokh Conspiracy |

From Holley v. Holley, decided a few months ago by the Louisiana Court of Appeals:

As to Mr. Holley's objection to relocation, she determined that "the intention of the legislature was the distance to mean traveling distance and not as-the-crow files distance." She found that "we are not crows" and determined that the "most commonly traveled route" should be utilized when calculating mileage under the relocation statutes. She consequently found that the distance between C.H.'s principal place of residence in New Orleans and the proposed relocation address in Baton Rouge is more than 75 miles and, thus, the relocation statutes apply to this case….

The legal question presented … is whether "miles" as provided in the relocation statutes should be defined and calculated in straight line, radial miles, i.e. as the crow flies, or in surface or roadway miles using the most commonly traveled or shortest route available.

Ms. Holley contends that the traditional and customary definition of the word "mile" should apply. She asserts that a "mile" is a uniform measurement of distance in a straight line, or "as the crow flies." Mr. Holley, on the other hand, contends that because the purpose of the relocation statutes is to assist relocating and non-relocating parents to share custody and maintain contact with the minor child, the most commonly traveled route of roadway or highway miles should be the applicable method of measurement.

The trial judge rejected Ms. Holley's argument, opining that "we are not crows," and applied the commonly-used highways or roadways method of measurement, accepting the most common route as determined by the MapQuest map Mr. Holley introduced into evidence. For the reasons discussed below, we find that the straight line or "as the crow flies" method of measurement is the standard and most uniform method to measure distances under the relocation statutes….

Our research reflects that, concerning the method of measurement of "miles" in a child relocation context, courts which have opined on the subject have found that the straight line or "as the crow flies" method of measurement is the most uniform and, in the absence of any contrary statutory language or provision, applies in child relocation cases. See, e.g., Carreiro v. Colbert, 5 N.Y.S.3d 327, 327 (Sup. Ct. 2014); Bowers v. Vandermeulen-Bowers, 278 Mich. App. 287, 294, 750 N.W.2d 597, 601 (2008); Tucker v. Liebknecht, 86 So.3d 1240, 1242 (Fla. Dist. Ct. App. 2012). For example, a Florida court stated clearly that "[i]n the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way." Tucker v. Liebknecht, 86 So.3d at 1242. The Court further explained that, "utilizing a method of measurement other than the straight line method would create uncertainty and generate needless debate."

Upon our review of the law in this state and others, we find that, absent any contrary statutory language or governing provision, the straight-line or "as the crow flies" method of measurement is the most uniform method to measure distances and that such method should apply in Louisiana child relocation cases. Applying the straight-line measurement method to the facts of this case, we find that the distance between Mr. Holley's residence in River Ridge and the address for the proposed relocation in Baton Rouge is less than 75 radial or straight-line miles. Accordingly, we find that the Relocation Act does not apply in this case and, thus, we reverse that portion of the trial court's judgment sustaining Mr. Holley's procedural objection to relocation.

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  1. There is at least one case where the “crow flies” distance is 1/2 the actual travel distance by car. Look at Ridgecrest, CA and Pahrump, NV.

    1. (Not totally germane to this conversation). When I was traveling thought northeast India (the general area between Nepal and Bhutan), there were towns that were 3 miles apart as the crow flies, and 40 miles and 6 hours apart by vehicle. We don’t have the Himalayas here, but I would think that in the Rockies, Appalachians, etc, there must be lots of towns that are super close by the ‘crows’ measure but so far apart in practical terms that it should implicate custody issues.

      Having said all that; I understand why the court when with the bright-line rule. This is an example where the legislature presumably could easily modify the statute(s) if it wanted to use the non-crow standard.

      1. I had to cross a couple of ridges in the Sierras once by a road full of 1st/2nd gear switchbacks, and on the way back, took the highway down one canyon to the flats and a second highway up the other canyon. Twice as far, half the time.

        1. I was working in south texas near laredo when I was in college, I asked the foreman how far it was into town. He said from “that side of the fence ” it was 8-9 miles. “from this side of the fence” it was 45 miles.
          FWIW, some of the ranches were quite large.

          1. So that makes you a “real” cowpoke? 😉

      2. My town is 6 miles from the Boston financial district. Or about 30 miles, if you don’t have a boat. There is a public transportation boat available, but many folks would find the fares almost prohibitive.

        1. I used to have a lovely 30-40 minute daily commute from Union Square to Malden.

  2. I think this makes sense even if it creates some cutoffs that might be unfair. A “usual route” method is inherently subjective and not necessarily great. Even if they went with a “shortest route” method, what if a road closes so they have to detour, which pushes it over 75 miles? What if it was over 75 and they open a new road that cuts the amount? As the crow flies avoids these problems.

  3. Seems right. Lakes or rivers or other physical obstacles may extend the driving distance.

    Though bravo to the trial court for using “we are not crows” in an opinion.

  4. Why?

    I don’t know if I am sadder that an attorney brought this argument, or that a trial court took the bait.

    While there might be some edge cases where the “crow flies” rule is a little unfair, that is more than outweighed by the ease of adjudication IN ALMOST EVERY CASE, EVER. I couldn’t imagine the number of cases that could be brought because, “Well, I took this route, and it was 61 miles! Ha!”

    Not to mention California (freeway or surface road … that should tie the LA courts up in knots).

    1. I think I understand your point, but it’s 2018. route optimization is a matter of 10 seconds. It seems like it would be easy to draw a line between optimal and deliberately sub-optimal routes.

      1. …and? How do you know that the suggested, “optimal” route is open?

        What about construction? A bridge that goes out? A detour?

        What is the supposed optimal route is sub-optimal for other, factual reasons (it is more dangerous, has more fatalities, etc.).

        What if there is a route over water, and you have a boat, but you prefer the route by car, which is much longer? Does your preference matter, or are there “hidden words” in the legislation that require this to be by car? What if it is a dirt road that wasn’t picked up in the mapping software? And so on.

        Traveling distance becomes an inherently factual dispute … why bother over-complicating something when you don’t have to? Should every distance determination, such as this, be subject to these vagaries?

        1. I agree with you in terms of existing statutes, but I could see someone amending the legislation to determine mileage based on standard computer routines, such as on Mapquest and Google Maps.

          Probably easier than calculating as the crow flies nowadays.

          1. “Probably easier than calculating as the crow flies nowadays.”

            Well, all you need is a map. But you know that Google Maps can measure “crow flies” distances … not to mention there’s a number of very easy websites that can do so as well.

            1. That’s true.

              As the crow flies, however, can be somewhat unfair in some cases. The statute here says that a custodial parent cannot move more than 75 miles away from the other parent. Obvious purpose is not to make it unfairly far to travel to see your child.

              But in real life, traveling distances and travel time depend on other factors than radial miles. My wife has a good college friend who lives 28 miles away radially. But driving there from where we live necessitates driving through NY City and part of Long Island. Getting there is a 2-hour ordeal even in good traffic, and I would dread having to do that regularly.

              OTOH, someone who lived 28 miles in the other direction from my house in NJ I could likely reach in 30 to 40 minutes.

              Now transfer those two scenarios to a divorce/custody situation, and I think it illustrates why as-the-crow-flies is not always the fairest way of deciding.

              I understand the need for something uniform and easy to apply. But in real life, that can sometimes lead to gross injustice.

              1. “But in real life, that can sometimes lead to gross injustice.”

                Well, I would personally find it more unfair to have to litigate out every traffic scenario. But that’s me. I do agree that on occasion, in edge cases, it can be somewhat unfair … but that unfairness is ameliorated by the amount of litigant money saved by people arguing over traffic conditions and optimal routes in child custody (in this instance).

                1. “But in real life, that can sometimes lead to gross injustice.”

                  I genuinely don’t know, either about Louisiana or any other state, but aren’t there other standards (best interests of the child or something) that might be deployed in cases of gross injustice? That seems much simply and has far fewer headaches, as Loki rightly notes, than adopting a rule that results in legions of relocations being subject to disputes regarding the calculation of distance.

                  Or does a parent have an absolute right to relocate up to 75 miles away regardless of impact on visitation and the child’s welfare. I suspect not.

                  …And, indeed, it seems the statute does have a category for other cases:

                  La. R.S. 355.17: …Any change in the principal residence of a child, including one not meeting the threshold distance set out in R.S. 9:355.2, may constitute a change of circumstances warranting a modification of custody.

                  So all the handwringing about those awful cases is unnecessary. The bright line rule makes way more sense for the run-of-the-mill cases and the objecting parent can always raise a change in residence as a change of circumstances warranting a modification of custody.

              2. Now transfer those two scenarios to a divorce/custody situation, and I think it illustrates why as-the-crow-flies is not always the fairest way of deciding.

                To the contrary, it shows why as-the-crow-flies is the fairest way. Some people will be better off than others, but it evens out, and saves a lot of financial/judicial resources.

                Yes, if you live in NJ and are going to LI, even a short crow-flies distance can be a long trip… unless you travel at off hours. Should a custody decision turn on whether one chooses to travel at 9 am on a weekday or 9 pm on a Saturday?

              3. Unfair? did it hurt your feels?

                You are assuming a lot about what the legislature intended. They very well could have assumed a 3hr separation was fair and calculated the 75 miles as the crow flies was a fair estimation of that.

                Maybe 75 miles is the average direct distance between population centers of a certain size in Louisiana. Maybe a lot of things went into the 75 mile statute that had nothing to do with actual road length.

                to heck with your feels. to heck with the idiots who brought the suit and the bleeding heart judge. tell her to walk.

              4. You should get your wife a Robinson R22. 😉

              5. In fairness, that’s a strong argument why New York and Louisiana should have different laws – they have different fundamental circumstances.

                Your counter would be stronger if you had an example of a really bad commute in, say, Baton Rouge or New Orleans. I lived for several years in Louisiana (though admittedly, not in a big city) and I can’t think of any commute horrors that compare to New York.

                By the way, your counter would be a strong argument that a state level law in New York would be fundamentally unfair since it would hurt non-custodial parents in or near NYC far more than it would hurt similarly situated people upstate. Local government has its flaws but it at least allows for the accommodation of these kinds of factors.

                1. Apologies. The comment immediately above was intended as a reply to Bored Lawyer’s comment dated 2.21.18 @ 5:29PM. I didn’t realize we’d already reached the indentation limit.

        2. …and? How do you know that the suggested, “optimal” route is open?

          What about construction? A bridge that goes out? A detour?

          again, it’s 2018. I’m kind of stunned that you’re stuck in 2008

          1. Now, there are, once in a while, times where google maps gets screwed up. I ran into one a few months ago when there was a two hour construction. But it was a two hour construction and yes, that should not be factored into a multi-year agreement

          2. “again, it’s 2018. I’m kind of stunned that you’re stuck in 2008”

            And I’m kind of stunned that you don’t understand how litigation works. Bright line rules make it easy. X miles for a child custody order, or X miles for a protective order, or X miles for a non-compete- these should be easy determinations that do not require any factual disputes. The entire reason for them is to avoid this exact situation.

            The very rare edge case does not warrant requiring people to plot out travel distances and have court hearing arguing over optimal routes, google maps, and other evidentiary issues. Bright-line rules that are easy to apply, like the one every single person knows, and has known, and doesn’t require google maps, fits.

            1. Careless,

              An appropriate name for you given your 2018/2008 comment. What Loki said.

              Plus, the rare edge cases have other available avenues, it would appear. La.R.S. 355.17.

          3. What about traffic? I would prefer a 90 mile drive on clear roads than 45 miles on I-95.

      2. What if the shortest distance is not the fastest route? That is often the case.

        There’s also the consideration of changes (in roads, in natural barriers, etc.) You could be within 75 miles of driving, but if a new highway goes up running perpendicular to that travel route, all of a sudden it could be 80 miles of travelling and somebody would have to move.

    2. CA coast travel is just one big moving parking lot most times. Ugh

  5. Apart from what others have said, in many places in the country, miles in a route do not connote how long it takes to get there. There is this little thing called traffic.

    I live 13 miles by road from my job, and it is probably about 10-11 miles “as the crow flies.” But it typically takes me an hour to get to work. The joys of rush hour traffic in the greater New York area.

    Radial miles is arbitrary, but no other standard would be workable.

    1. I fully agree. I’m in the DC area and a “good speed”, even in decent non-rush hour traffic, can be 20mph in many areas.

  6. BTW, the phrase “as the crow flies” has an interesting history, but is not all that accurate. From Wikipedia:

    As the crow flies, similar to in a beeline, is an idiom for the most direct path between two points. This meaning is attested from the early 19th century,[1][2] and appeared in Charles Dickens’s novel Oliver Twist:

    We cut over the fields at the back with him between us ? straight as the crow flies ? through hedge and ditch.[1]

    According to BBC Focus, “‘As the crow flies’ is a pretty common saying but it isn’t particularly accurate.”[3] Crows do not swoop in the air like swallows or starlings, but they often circle above their nests.[3] Crows do conspicuously fly alone across open country, but neither crows nor bees (as in “beeline”) fly in particularly straight lines.

    1. That has been bugging me for a long time. Something like “straight as the goose migrates” would make far more sense.

      1. I prefer “straight as the neutrino plunges”. None of this namby-pamby great circle nonsense, this straight line doesn’t mess around.

        1. I have also referred to neutrinos in citiscapes where crows would have to fly around buildings..

          1. No, they wouldn’t “have to” fly around buildings.

            While it’s unusual for crows to fly higher than around 300 feet, they are found in mountain ranges in the US at elevations over 14,000 feet, so while they may not normally do so, they are more than capable of flying over even the tallest buildings.

        2. (chuckle) I guess this is your polite way of pointing out to the legal community that the earth isn’t flat. They won’t care, precedent is on their side:-)

      2. I’m not sure they wanted to use goose because of another phrase about waste removal from the lower end of the goose’s alimentary canal. 😉

  7. Solve the problem by defining the term and/phrase in the decree.

    1. The court is addressing a statute. And it is solving the problem by interpreting (thereby defining) the terms of the statute. That solves the issue for all cases, instead of having every custody order have to include a few lines about whether the crow flies or not.

      1. The term was already defined. Distance between two points has been a solved problem for thousands of years.

        That original ruling was “clarifying” something that was already perfectly clear. I notice the ruling didn’t specify if it means survey miles, international miles, Roman miles, or nautical miles. Could a judge decide that “We are not surveyors” and decide to use a different measure?
        Thankfully, the Appeals Court found, again, the obvious – that unless otherwise stated, the common and literal meaning applies.

        “We are not crows”? We are also not automobiles on public roads.

        1. “…was already perfectly clear….”

          As a number of commenters here disagree with the appeals court’s “crow flies” interpretation and it was litigated the the appeals court after a trial judge also came to a different conclusion, maybe it isn’t “perfectly” clear. I agree that the straight-line interpretation is the best interpretation, but, given the amount of disagreement here and the trial judge’s contrary determination, I think you are mistaken that it is “perfectly” clear that the legislature intended a straight-line calculation.

          In any case, if a considerable number of people find a statute ambiguous, then it does need “clarifying” by the court.

  8. “utilizing a method of measurement other than the straight line method would create uncertainty and generate needless debate.”

    Not to fall into needless debate, but why 75 miles? From the article it is clear that there was only a minor difference in the measurements.
    He testified that Google Maps reflected the drive to be 75.7 miles and MapQuest reflected the drive as 75.1 miles. (To refer back to the A.I. article, even the computers can’t get it right!)

    So why not 80 miles? Or 45 miles? Or why not time in transit? Or why not make both parents move to a neutral third site? Surely this is not about what is best for the kid, but a couple using the courts to beat each other up.

    1. The punk kid should have thought about that *before* he got born to a couple with a dysfunctional relationship.

    2. A clear, objective standard, however arbitrary, is necessary to reduce the frequency of couples using the courts to beat each other up. Minimizing couples use of the courts in that way seems to be your concern (and I agree), so you should be happy.

    3. Perhaps 75 miles is the average distance between population centers in Louisiana.

      Perhaps the legislature put a lot of time and thought into what was a fair distance.

      It’s almost certainly, not about your ‘feels’

    4. My suspicion is to pick a fairly arbitrary cutoff that is not too short nor too long. It’s also why a measurement of 75 miles as the crow flies might be longer in actual driving, but isn’t unreasonably different to require a different standard. Its arbitrariness is partly designed to make administration of the rule easier.

  9. There’s a charming book called Taxicab Geometry by Eugene Krause. It’s one non-Euclidean geometry in which distance between two points (x1, y1) and (x2, y2) is measured ~not~ as the crow flies:

    d = sqrt {(x2-x1)^2 + (y2-y1)^2} ],

    but as a cab or car would drive it in an ideally laid out city with regular city blocks bounded by streets:

    d = [(x2-x1) + (y2-y1)]. This, of course, assumes a squared off grid.

    Recall that the definition of a circle is the set of points equidistant from a point (called the center). Now plot the graph for a circle in taxicab geometry. How about an ellipse (set of points the sum of whose distances from a ~pair~ of points is constant.

    Exercises left for the reader. Answers are interesting.

    1. “Did someone mention non-Euclidean geometry?” / H. P. Lovecraft

    2. Damn it. You’ve now given me nightmares. 😉

  10. “For every problem there is a solution that is clear, simple, and wrong.”

  11. Seems wrong to me. Actual driving distance is not that hard to determine.

    And if we’re after originalism, the word “mile” comes from ancient Rome and meant 1000, but was an abbreviation of “1000 paces” in Latin. The armies which built the Republic’s highways simply placed milestones at intervals of 1,000 of the army’s marching paces. That would certainly imply the practical, on-the-ground interpretation.

    1. Driving distance of a specific route is easy to determine. Driving distance between two points is inconsistent and open to interpretation due to route choices. Surface of the earth measurements are consistent. Road distance can change due to new roads being created or old ones being closed and destroyed. It also depends on specific routes chosen. Are neighborhood roads allowable to use as a shortcut or only major roads? Keep it to straight line distance (simple) and you eliminate further human interpretation requirements (complex).

    2. Originalism doesn’t matter unless the law was written by Justinian. Those who are textualists would go by the original understanding at the time something is written and not give a damn what the Romans thought.

  12. The objection to “edge” cases is itself a potential source of ambiguity and dispute. In New Jersey, almost any exception would be notably an edge case. On the coast of Maine, almost everything will be an “edge” case. You almost have to entertain arguments regarding in which kind of terrain the case is founded. There certainly isn’t going to be much justice in a jurisdiction where the intended result will not be found in the majority of cases?or where extensively complicated terrain makes the supposedly simplifying standard easy to game.

  13. When we all get our flying cars, this whole argument will become irrelevant. Now, where’s that flying car I was promised would be here by now?

    1. Patiently waiting for approval by 326 federal agencies, and a total of 6,394 state and local agencies.

    2. I remember reading that too. Wasn’t it in Popular Mechanics?

    3. There have been more than a few (at least partially working) full scale prototypes for flying cars that have been built.

      It’s government regulation that killed the idea. Pilots face much higher licensing standards (including physical heath standards) than drivers. Aircraft face much tighter registration requirements, and maintenance and safety regulations/certifications than cars.

      The government refuses to consider licensing and regulating any sort of flying vehicle more like cars than like existing aircraft.

  14. I would note that for government travel, the regs are written to use zipcode to zipcode using shortest travel route.

  15. It’s really shorthand for time traveled. If you take a train it will take much longer than driving.

    In a few years, you will be able to order a person-carrying Uber drone to fly you there much faster, in the brief window of time between its availability and the regulator capture by the auto and taxi industries lead by outraged useful idiots.

  16. Restricting people’s ability to relocate represents a major and sometimes crippling restriction on liberty, particularly if people need another job. It therefore makes sense, in the absence of any direction from the legislature, to interpret the rule leniently to avoid restricting liberty unnecessarily.

  17. Interestingly, google maps suggests the fastest route between the two addresses in the controversy is 70.6 miles long. The two address were

    Mr. Holley lived 160 Citrus Rd, River Ridge, LA 70123
    Mrs. Holley relocated 9472 Boone Dr, Baton Rouge, LA 70810

    https://tinyurl.com/yclh8sbm

    In court, Mr. Holley evidently proposed a route that was his preferred route and which took longer than 75 miles. Mrs. Holley said her preferred route happened to be 73 miles. I have no idea which route would be deemed “most commonly traveled”. But I think the fact that it is somehow longer than the one google considers “fastest” does show how difficult to implement the “most commonly traveled” standard would be.

  18. Here is but one example of a “crow flies” statutory rule of interpretation from the Interpretation Act 1984 (WA):

    “65. Distance, measurement of

    In the measurement of any distance for the purposes of a written law, the distance shall be measured in a straight line on a horizontal plane.”

    Gee, why didn’t they think of that in Louisiana?

    1. James,
      That’s a weird definition. Fine for relatively short distances. But (and, admittedly, it’s hard to think of a real-life situation where it would matter) for long distances, you would think that any legal measurement of distance would include the curvature of the Earth.
      Greenland to Antarctica: Shortest distance (ie, tunneling thru the earth): about 8,000 miles.
      G to Ant: via flying: about 11,000 miles.
      But the 1984 act you cites would require the 8,000 mile figure, right (cuz it’s on a horizontal plane, and “as the crow flies–once you’re talking about significant distances–is on a curved plane.

      Hmmm. A case might be a lawsuit where a package delivery company gets paid on the distance between two locations. Seems counter-intuitive to say, “You have to fly 11,000 miles, but the thru-the-Earth distance is only 8K miles, so that’s what we owe you for.”

      1. “That’s a weird definition. Fine for relatively short distances. But (and, admittedly, it’s hard to think of a real-life situation where it would matter) for long distances, you would think that any legal measurement of distance would include the curvature of the Earth.”

        If it’s hard to think of any real world situations where the curvature of the earth would matter, why would it be a weird definition? Seems like a pretty good one, and if for some reason the legislature is drafting a law regulating payments for shipments from Greenland to Antarctica they can always clarify the law in that instance.

        Plus, the definition of horizontal doesn’t really support your view. It is derived from “horizon” after all. And the surface of the Earth can be described as a two-dimensional plane, which is why places are typically located by their latitude and longitude, with altitude just being added information.

  19. Check out Breezy Point, NY to Rumson, NJ. 11 miles as crow flies and 58 by car.

  20. > We Are Not Crows

    We are Devo!

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