Who gets custody if a mom moves?
- Article by: ERIK ECKHOLM
- New York Times
- November 23, 2013 - 6:52 PM
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 and McKenna, 27, a former Marine and firefighter who is attending Columbia University with GI 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 Miller about their future relations, McKenna moved to New York to start school. Miller accused her of fleeing to find a sympathetic court, and a New York judge agreed, castigating McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Miller, 36, and also set off alarm bells among advocates for women’s rights.
On Nov. 14, a five-judge appeals court in New York said 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 9 months old, back to McKenna.
But a tug of war between courts in two states remains possible, because the San Diego judge has not yet ceded jurisdiction.
It is an unusual celebrity custody case, not centered on extravagant financial demands or questions about paternity. Both sides say they hope for co-parenting, but relations have been poisoned by what McKenna says is a steamroller campaign by Miller to push her to the margins and by what Miller calls the mother’s uncooperative behavior based on a quest for revenge.
They cannot even agree on what to call the boy. When he was born in New York on Feb. 23, McKenna pointedly gave the newborn Miller’s given names, registering him as Samuel Bode Miller-McKenna. She calls him Sam. Bode won permission from the California court to add Nathaniel as a middle name, in honor of his recently deceased brother, and he calls the boy Nate.
Women’s rights advocates called the early decisions, questioning McKenna’s behavior, a threat to the autonomy of pregnant women and applauded the appeals court reversal.
“Especially with current political pressures to recognize separate legal rights for fetuses, there will be increasing calls on the courts to fault a pregnant woman for moving, to restrain women from living their lives because they’re pregnant,” said Sarah E. Burns, the head of the Reproductive Justice Clinic at the New York University Law School. Burns was an author, along with several women’s rights groups, of a friend of the court brief in McKenna’s successful New York appeal. Miller is 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 McKenna became pregnant. They often travel together to tournaments and promotional events, posting pictures of Nate on social media.
McKenna has accused Morgan Miller, who announced that she had a miscarriage in January, of seeking to replace her as mother. Miller, in a blog post on Nov. 16 that was soon taken down, contrasted their “loving and balanced family” with McKenna’s heavy reliance on child care.
When the boy was born, McKenna filed in New York for temporary custody. But on May 30, a Family Court referee refused, rebuking 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 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 Miller. On Sept. 4, as McKenna described it, choking up, Miller and his wife came to her apartment, “took the baby out of my arms, dropped it in a car seat and drove away.”
This month, in its scathing reversal of the May decision, the appeals panel in New York rejected the suggestion that “the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship.”
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