Paternity and Travel

By Attorney Gregg Herman
November 25, 2013

For most cases, jurisdictional issues over custody are resolved by the home state rule in the UCCJEA.  However, when the “home” is still inside the mother, other considerations are in play.  Such is the case, according to an article yesterday in the New York Times, with the baby of Sara A. McKenna and Olympic skier Bode Miller.

According the story, Sara became pregnant after a brief relationship with Bode (raising a number of questions about this relationship, but this blog is limited to discussing legal issues.  Sorry).

According to the article:

“…when she was seven months pregnant…Ms. McKenna moved to New York to start school. Mr. Miller accused her of fleeing to find a sympathetic court, and a New York judge agreed, castigating Ms. McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Mr. Miller and also set off alarm bells among advocates for women’s rights.

But on Nov. 14, a five-judge appeals court in New York said Ms. McKenna’s basic rights had been violated, adding,  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 nine months old, back to Ms. McKenna.

The problem, of course, is that a court cannot order where a fetus will live separate from where the mother will live.  So any such order restricts the mother’s right of movement.  After birth, of course, separating the two is possible legally since it has now happened biologically.  But, until then, the mother (and fetus) are free to move wherever they please.  And, this can lead to forum shopping.

When  a mother moves simply for the purpose of putting as much mileage as possible between Dad and the baby (which seems to be what the trial court believed here) such a move is selfish and inappropriate.  However, when the mother has independent reasons, not allowing the move is a problem.  After all, having a baby should not “imprison” a mother in a particular state for 18 years.

What is disconcerting here, is the apparent order transferring custody to Bode.  Usually, before a court will rip a child from its mother, it will give her the option of returning to the father’s state.  That may have happened here and Sara did not do so, but that is not apparent from the available facts.

Long distance visitation is very difficult for children.  Frequent transitions are impossible and the long travel times and chunks of time away from a primary home are quite stressful.  But, this is a big country and there is, on occasion, no other options.

In a perfect world, mothers and fathers would marry each other (well, in a truly perfect world, they would marry each other before creating babies…).  In a slightly less than perfect world, mothers and fathers would live near each other to ease the stress of transitions and large chunks of time away from a primary home.  In a real world, there are no easy or good answers.  And the legal system has no perfect answer where the facts of geography do not allow for such.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.