December 13, 2013

COMMENTARY: Does pregnancy limit a woman’s right to move?

Emily Bazelon

Here’s one I hadn’t heard before: A woman gets pregnant in California by a famous athlete she is dating casually, decides to go to college in New York — tuition paid by the G.I. Bill — and after she moves there, before the baby is born, gets blasted by a New York judge for “her appropriation of the child while in utero,” which the judge calls “irresponsible” and “reprehensible.”

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HOT TO TOT: Sara McKenna won a round in court against skier Bode Miller (left) over their infant, Samuel. Photo: Reuters (left) and Chad Rachman (right)

I understand that fathers have rights, and I’m all for that. But this ruling took those rights way too far, to the point of dangerousness. It treated a fetus as a child, for purposes of a custody battle. And in doing so, it threatened to limit the rights of a pregnant woman to move and travel.

A New York appeals court overturned the ridiculous initial judicial order in this fight between Sara McKenna, 27, a former Marine and firefighter now attending Columbia University, and Bode Miller, 36, an Olympic skier, but the case isn’t over. This case i s the latest fascinating entry in a series of legal challenges by fathers to traditional assumptions about parental rights and child custody.

The old legal problem for single mothers was deadbeat dads. The new one is fathers who are so eager to assert themselves that they run roughshod over women’s rights. As the adults clash, sometimes it even becomes hard to consider the child at the center.

McKenna and Miller met through an online dating service in April 2012, and she got pregnant in late May, before their brief relationship ended. In June, Miller told McKenna he wouldn’t come with her to an ultrasound because “U made this choice against my wish,” according to a text she released from him. She texted him in October that she was moving to New York to attend Columbia. That same month, Miller married someone else.

In November 2012, he filed a “Petition to Establish Parental Relationship” in California, checking the box on the form to say he was the father of “a child who is not yet born.”

Two days after McKenna’s baby was born in February, she went to New York Family Court to petition for custody — the legal basis for keeping the baby with her and making decisions about raising him.

The first step of the Family Court’s job — deciding whether it had jurisdiction, or the authority to hear the case — should have been easy. New York law, which is based on a uniform code for all the states, says that New York courts have jurisdiction when New York is the child’s “home state.” This was obviously the case for McKenna and Miller’s baby, who was born in New York. But the New York family judge who heard the case (called a referee for some reason) sent the case back to the California courts, accusing McKenna of moving to New York as an underhanded attempt at “forum shopping” — picking one court over another. The judge/referee also overlooked the fact that “child” in state custody law does not mean unborn child, as in fetus, which is what the “child” was when McKenna moved east.

A list of advocacy groups for women and reproductive rights have banded together on McKenna’s behalf. “I’ve never heard of a restriction on a pregnant woman telling her that she can’t move to another state,” University of Florida law professor Lee-Ford Tritt told me over the phone.

Agreed: It is not up to fathers, or courts, to dictate where pregnant women live. Everyone has the fundamental right to make this decision for him- or herself. If you look at this case from Miller’s perspective, though, you can see why he moved aggressively in the California courts once he decided he wanted to play a role in his son’s life.

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