The famous skiier Bode Miller reportedly had a short affair with one Sara McKenna, whom he met through a dating service. Their child was born on February 23, 2013 in New York state.
Between the conception and birth, the mother moved from California to New York City to attend college at Columbia University where she had been admitted, and Miller married someone else. There are allegations made and disputed but not adjudicated to date, apparently, that Miller told the mother while pregnant that he wanted her to abort the child and she was on her own with respect to it, a position which if taken changed after he married another, and the child of that couple miscarried, with the litigation following promptly thereafter. There is no indication in the reporting I have found that any order was issued prior to the New York litigation limiting the right of Ms. McKenna to move or travel out of state during the pendency of the initial action.
However, Miller elected to start litigation about parentage and custody of the child before it was born. This is one of two parentage litigations he now has pending and this litigation is poisonously venomnous. They do not even agree on the name of the child, now that he is born.
One of the grounds he asserted, according to the report, was, before the child was born, that the mother carrying the child had no right to move to another state where, the laws were different as to assumptions about joint custody, and the move would interfere with his rights as to a relationship with the to-be-born baby.
In the first round, the reversal on appeal of which was the subject of the reporting linked above, the Family Court referee (not a judge and now not likely to become one) who heard the matter in New York said that the mother's move to New York was reprehensible and irresponsible, and said she had wrongly appropriated the infant in utero, and ceded jurisdiction of the custody case, on an 'inconvenient forum' basis to the San Diego Court. Some but not all of the reporting suggests that a New York referee or judge in round one accused the mother of absconding with the unborn child by moving to New York.
If she had not been pregnant when she moved and there had been no baby born, Miller would have nothing to say about anything she did or did not do.
There is a question as to the location at which the child was conceived. The child was born in New York while the action was pending in New York and appears to be presently with the putative father and his wife in San Diego, by reason of a California court order. That California order may have been issued in the first version of this action, commenced there, allegedly before the mother moved to New York. I have seen no indication in reporting that the California court restricted the mother's movements.
That ceding of jurisdiction from New York to California was reversed according to the reporting here quoted from the New York Times reporting:
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.”This is, of course, not a case where a mother is alleged to have interfered with an existing relationship between the alleged father and the child, because the child was not yet born and therefore could not have at the time of the complaint a separate existing relationship with the alleged father.
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 appalling element in this case is Miller's claim, upheld in the first round of the New York case but reversed in the appeal, that the mother of the unborn child, to whom the father was not married and who had not as of that point been established by the court as the parent of said child, did not have the right to move to another state while carrying the unborn child, as that violated his rights of access, which at the time of filing would have been access to the unborn child.
This is a clear instance of subordination by legal process of the entire life of the mother of an unborn child to the putative but not established father's wishes and convenience, as long as she is pregnant, and one which subordinates all of her life rights to the dispute over a child not even born yet, not the child but only the dispute brought by the alleged biological father as to the child before his biological connection to the child was established and before it was in fact born and became a child.
The decision below gave Miller more rights over McKenna than husbands have over wives.
According to the court below, the same rule would apply had McKenna traveled to seek medical care or for some other purpose than going to Columbia. Any travel would have been barred, and her only choice would have been to stay in California at least until the baby was born because any interstate move at all would have meant the unborn one was forced to go as well and there was no way she could prevent taking him anywhere she went. The question raised is what else she could not do, in addition to travel once a putative father is held to have the right to restrict her activities while pregnant. And God help her if something had happened during the pregnancy and the baby was not born or was born with issues. And none of the accounts I have found have any description of any support or payment of medical charges in respect of the pregnancy by Miller. McKenna was effectively a single parent, pregnant and without any described means of financial support that involved Miller.
I would not want to be the New York Family Court referee who decided this one on the ground that the biological mother's conduct in moving to New York to go to college, was rephrehensible and irresponsible, given how judges are created in that City.
But the more important issue is that both the alleged father could argue, and the primary level court decider anywhere could agree, that the fact that the mother was pregnant with what might be the father's child created a legally recognizable relationship whereby she lost by reason of the pregnancy a constitutional right which all Americans supposedly have to move among the states, and that, apparently, she was in fact required to stay within the convenient range of the alleger of facts in a complaint because she was pregnant with what he also alleged was his child, with no rights the court in New York would initially recognize in her to a life independent of the pregnancy for so long as it continued.
This is made more offensive by the circumstance that Miller had not as of the time he made this claim been determined in fact to be the father of the unborn child. All he had apparently done at that point was to make the legal claim of parentage, which unadjudicated claim was given full effect.
This precedential initial decision may be the father, never the mother, of others like it, holding that the wishes of an alleged father to an unborn child take priority over any and all other rights of the mother during the pendency of a pregnancy, that equal protection of the law does not apply to the pregnant. An admission to Columbia University, which would have to be surrendered had the initial decision come down during the pregnancy is no small matter, but the premise of Miller's complaint was that such opportunities which came to the mother would have to be discarded and any other activity to which he objected, by reason of the pregnancy because they were inconvenient to him, NOT notably, that he could not visit said child in New York. And, until this appeal resulted and was decided, he ended up with sole physical custody of the child once it was born, in California.
A separate horrendous aspect to this is that the premise of the entire action is that an unborn child has been at least once now held to be a separate individual from its mother while she is still carrying it, for court purposes. This particular version of this idea is now that in a civil matter, any legal rights she may have are now qualified by the demands of another alleged person of interest, as if the two were separate, and that she was subject to restrictions on her life, where she would live for the non physical effect of her own choices about her own life because of the possible effects on this other person from whom she is not separate enough. There have been criminal and custody cases where mothers lost custody and some were prosecuted for taking illegal recreational drugs while pregnant, but no such physical consequence of baby addiction or other adverse physical consequence is alleged here, only the possibility of affect on a future relationship of a baby once born to a person who may or may not have a biological relationship to that baby. And there have been many cases where one parent having physical custody of a born baby took it out of state, but this pushes the moment at which the court has jurisdiction over any such move back to the point of conception, and requires restriction of the mother as well since the baby cannot be returned to a state until it is born and is physically separate from the mother. As it is now laid out, Miller allegedly took no responsibility for the unborn one until after some other events caused him to change his mind, and he could change his mind again at any time.
A third is that here Miller, still referred to in the quotation from the Times version of the appellate decision, as the 'putative' father, that is, that his position as biological parent is not resolved by the decision below and still not resolved, was held to have standing to make this demand and have the court hear it, and to deliver the baby once born to him before it was resolved. No recognition was given of the risk she had to take to bring that child into separate human life, as if there were no such risk.
As it is, it does appear that the mother will have either to surrender her rights to an independent life or litigate the matter in California and possibly be forced to live there in order to keep a relationship to the baby she has borne, a place where she no longer lives, and to surrender her life in New York to do so, depending on how the conflict between the two states' courts is resolved, and what the alleged father then does, whether the baby is returned to NY if NY wins the intercourt dispute.
Unsurprisingly, this is not a case where any of the reporting has linked to any decision thusfar reprinted, nor have I been able to find one (hello, those who have the dailies from the New York Law Journal) although the appellate decision will probably appear in due course.