Column: A woman's right to move

NEW HAVEN, Conn.

Here's one I haven't heard before: A woman gets pregnant in California by a famous athlete she is casually dating, 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."

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 has already overturned the ridiculous initial judicial order in this fight between Sara Mc-Kenna, 27, a former Marine and firefighter now attending Columbia University, and Bode Miller, 36, an Olympic skier. But the case isn't over, and it'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, "Just a heads up, I met with an adviser from Columbia today and we will probably be moving there in the fall."

That same month, Miller married someone else (Morgan Beck, a beach volleyball star and model, if you must know). And in November 2012, he filed a "Petition to Establish Parental Relationship" in California.

McKenna moved to New York in December, when she was seven months pregnant. Two days after her baby was born in February 2013, 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 New York family judge who heard the case accused her of moving to New York as an underhanded attempt at "forum shopping" — picking one court over another. The judge 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.

"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. "I'm outraged by this idea that they even ask about her motive. Columbia is a phenomenal school, but I don't care if she just liked the bagels and pizza in New York better."

Agreed: It is not up to fathers, or courts, to dictate where pregnant women live.

Because of the initial wrongheaded New York ruling, in September the baby went to live with Miller and his wife in California, after the California court granted him primary custody. Now the usual gender roles are reversed: It's Miller who has taken care of the baby for the last couple of months, and McKenna who is trying to get her now-9-month-old child back. She has seen him for only 10 days since she had to hand him over, according to her lawyer.

This case offers up one lesson and at least one big question. The lesson is that it's different for a family court to weigh in about where parents may live once a child has been born than beforehand — or it should be. As the brief by the women's groups advocating for McKenna argues, "eggs, embryos and fetuses are necessarily inside the women that carry and nurture them in their bodies. The distinction is everything. … A pregnant woman cannot help but dictate the geographic itinerary of the egg, embryo, or fetus that by biological necessity goes where she goes." That doesn't mean the mother wins the custody battle in the end. But it does mean she shouldn't be penalized for moving to another state before the baby is born.

The hard question is what courts should do when one parent wants to move far away after a child has been born, and the other parent wants to remain closely involved in the child's life.

Emily Bazelon, a fellow at Yale Law School, is the author of "Sticks and Stones."

© 2013 Slate

Column: A woman's right to move 11/26/13 [Last modified: Tuesday, November 26, 2013 3:20pm]

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