Fetal Relocation

Lawyers have been known to counsel an unmarried pregnant woman to move to the jurisdiction in which she wants to live before the baby is born, in order to avoid ongoing legal conflict with the father’s child over custody and/or the place of residence of the child.

Seems that at least a couple of courts in the United States take issue with this practice.

 When Bode Miller, the Olympic ski star known for daring Alpine racing, met Sara A. McKenna in San Diego last year through the high-end matchmaker Kelleher International, they were both professing interest in finding a marriage partner, she recalls.

The relationship did not last long — but she did become pregnant. And now the skier, 36, and Ms. McKenna, 27, a former Marine and firefighter who is attending Columbia University with G.I. Bill support, are locked in a cross-country custody fight that has become not only tabloid fodder but also a closely watched legal battle over the rights of pregnant women to travel and make life choices.

In December, when she was seven months pregnant and already sparring with Mr. Miller about their future relations, Ms. McKenna moved to New York to start school. Mr. Miller accused her of fleeing to find a sympathetic court, and a New York judge agreed, castigating Ms. McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Mr. Miller and also set off alarm bells among advocates for women’s rights.

I should say.

With all due respect to parental rights for both parents, I think that there is a limit to the life-choice restrictions placed on a pregnant woman. Fortunately for Sara McKenna – and let’s hope for her now nine-month old baby – a New York State appeals court agreed:

But on Nov. 14, a five-judge appeals court in New York said Ms. McKenna’s basic rights had been violated, adding, “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”

The appeals court also ruled that jurisdiction belonged in New York.

On Monday, a New York City Family Court will start proceedings that could switch custody of the boy, now nine months old, back to Ms. McKenna.

But a tug of war between courts in two states remains possible, because the San Diego judge has not yet ceded jurisdiction.

The article doesn’t discuss this, and I would be very curious to see the court pleadings here, but I wonder how much of the California decision was at least unconsciously based on what appears to be a socio-economic disparity between the parents.

Mr. Miller is currently training for the Sochi Winter Olympics. In October 2012, he married Morgan Beck, a beach volleyball star and model he started dating around the time Ms. McKenna became pregnant. They often travel together to tournaments and promotional events, posting pictures of Nate on social media.

The marriage provided new grist for conflict. Ms. McKenna has accused Ms. Miller, who announced that she had a miscarriage in January, of seeking to replace her as a mother. Ms. Miller, in a blog post on Nov. 16 that was soon taken down, contrasted their “loving and balanced family” with Ms. McKenna’s heavy reliance on child care.

Ms. McKenna joined the Marines at 17 and four years later became a firefighter at Camp Pendleton, the Marine base near San Diego.

So, we have a financially comfortable sports star on one hand, and a veteran with few current financial prospects on the other, who – gasp – needs to put her child in daycare while she’s at school trying to build a future.

Or, is it the case that “bad behavior” on the part of the mother, specifically, moving to a different jurisdiction, induces judges to rule in favour of the other parent, without any substantive investigation as to the best interests of the child. Seems to me taking a baby and removing him from his mother without even attempting to determine what this will do to the child is something close to judicial negligence.

Once the boy was born, Ms. McKenna filed in New York for temporary custody. But on May 30, a Family Court referee refused, rebuking Ms. McKenna for “unjustifiable conduct” and “forum shopping” and making the unusual decision to leave the case in California even though the baby was born and lived in New York.

While Ms. McKenna “did not ‘abduct’ the child,” the court said, “her appropriation of the child while in utero was irresponsible, reprehensible.”

The Family Court in San Diego proceeded to grant primary custody to Mr. Miller. On Sept. 4, as Ms. McKenna described it, choking up, Mr. Miller and his wife came to her apartment, “took the baby out of my arms, dropped it in a car seat and drove away.”

Ms. McKenna has seen him for a total of 10 days since the handover, said her lawyer, Naved Amed, and is scheduled to have him over Thanksgiving weekend.

Relocation issues are tough enough when parents divorce, and this decision is part of the ongoing discussion about how far we need to go to guarantee parental rights, and how we punish parents – generally mothers – for taking steps which are often necessary to ensure economic survival.

The article appeared in the New York Times, and is well worth the read.




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