Custody Battle Raises Questions About the Rights of Women

How much personal autonomy does a pregnant woman have?  Is it considered an “appropriation of the child” for an unmarried pregnant woman to move to another state without notice to the putative father?  These complicated questions about a woman’s privacy rights are discussed in the New York Times article, Custody Battle Raises Questions about the Rights of Women.

Sara McKenna met Bode Miller in San Diego through an internet matchmaking website, spent some time together, and McKenna got pregnant.  Their relationship did not last, but McKenna decided to keep the baby.  Miller, who was unhappy about the pregnancy, expressed his refusal to accompany McKenna to an ultrasound, via text message.  Over time, Miller changed his mind and wanted to “do his duty [as a father],” filing a declaration of his paternity and interest in custody in San Diego.

Meanwhile, McKenna quit her job as a firefighter and decided to move to New York to attend Columbia.  This is where the problem begins.  McKenna was still pregnant.  Apparently, by moving to New York without giving proper notice to Miller while custody proceedings were still ongoing, McKenna “took” the baby away and did not deserve the custody of her yet unborn child.

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

Miller and a New York judge accused McKenna of “fleeing to find a sympathetic court” or “forum shopping,” and granted Miller custody of the child.  Thankfully, the appellate court had more sense to reject this logic:

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.”

Although it would have been better for McKenna to send a more official notice to Miller than a text message about “probably moving to New York” to tell him about her whereabouts during an impending custody proceeding, McKenna should still be allowed to move to achieve her goals in higher education.  Her pregnancy should not tie her down in one place, in fear of being accused of forum shopping and “appropriating” her in-utero child.

Esther Kim

About Esther Kim

Esther Kim is a third year student at the University of Houston Law Center. She graduate from Wesleyan University in 2007 with a B.A. in Liberal Arts with a focus in Chinese Language and Literature. As an undergraduate, she worked one summer at the Citizens' Committee for Children, New York, a child advocacy organization, where she developed an interest in children's rights, community after-school resources, and immigration. Prior to law school, she worked as a paralegal at Cadwalader, Wickersham & Taft, LLP in New York City. Esther is interested in adoptions and child neglect and abuse.

One thought on “Custody Battle Raises Questions About the Rights of Women

  1. Lacey
    February 11, 2014 at 6:28 PM

    What’s the case cite for this case?

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