Family Law Corner: Bode Miller Case Raises Question of Rights of Pregnant Women

Winning is on US Olympic skier Bode Miller’s mind- not just going for gold in Sochi but also in the courtroom against baby-mama Sarah McKenna.
Miller and McKenna had a short-lived relationship in early 2012 resulting in pregnancy. Miller filed a paternity action in California that November, months before the baby was born. McKenna moved to New York in January 2013 to attend Columbia University and gave birth to their son in February.  She then filed for custody in New York.  In May 2013, a New York judge found her move to New York “irresponsible” and “reprehensible” and refused to take the case, calling her action “forum shopping.”  The California court then granted temporary custody to Miller, who by this time had married another woman.  In November 2013, an appeals court overturned the New York trial decision, bringing jurisdiction back to New York.  The New York trial court then gave custody back to McKenna.  The parents are due back in court in December for another hearing.  As an aside, both parents have different names picked out and are battling that issue, too.

Pundits have taken an interest in the case because of the orders faulting McKenna for moving while she was still pregnant, which raises questions about the rights of a pregnant woman versus the court’s concern over the future custodial situation of the fetus.  In making its decision on whether or not to accept jurisdiction, a court looks at the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), an act designed to create uniformity in how states handle child custody jurisdiction issues.

The UCCJEA has been adopted by 49 states, including New York and California.  Under the UCCJEA, a court has jurisdiction to make custody orders if the state is the child’s home state. Family Code §3421.  A home state is the state where the child has lived for at least six months before the custody action commenced or, for a child less than six months old, the state in which the child lived from birth.  Family Code §3402.

In McKenna and Miller’s case, their son was born in New York so jurisdiction would normally go to New York.  However, the California case was pending when McKenna moved.  Under Family Code §2040, she would have been barred from removing the child from the state while the action was pending.  Since McKenna was pregnant at the time she left the state, the question being raised is whether or not the Court had the legal right to stop her from leaving the state before the child’s birth.  The appellate court found that the trial court did not have that right, stating “[p]utative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”  California has not ceded jurisdiction so how this tale will end remains to be seen.