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Child Custody - What about the Rights of a Pregnant Woman?

In an unusual child custody battle, the Courts of New York and California weigh in. Olympic ski star Bode Miller met Sara McKenna in San Diego last year through a high end matchmaker service. Both were professionals seeking a marriage partner.

Although their relationship lasted only 6 weeks, Sara became pregnant; a former Marine who enlisted at age 17 and firefighter, she realized that she could not continue in her profession while pregnant. Using the G.I. Bill, she found a new start at Columbia University as it offered the best plan for a new parent. While pregnant, she moved to New York and notified him as she was thinking of moving.

Bode Miller, on the other hand, married a beach volleyball star and model he began dated at the time Ms. McKenna became pregnant. He is now in training for the Sochi Winter Olympics. The new Mrs. Miller noted in a blog post that "their loving and balanced family" contrasted with Ms. McKenna's reliance on child care.

After they separated, Ms. McKenna says she asked Mr. Miller to be an involved father, but he responded that he would not accompany her to an ultrasound and stated "U made this choice against my wishes".

Immediately after the child was born in New York, Ms. Miller sought child custody in the NY courts. On May 30, a Family Court referee refused her request and castigated her for "unjustifiable conduct" of absconding with the fetus for moving to NY. The NY court thus allowed the California court to grant custody of the baby boy to the father. Ms. McKenna had named the child Samuel Bode Miller-McKenna. Mr. Miller received permission from the California court to change his name to add the middle name of Nathaniel in honor of his recently deceased brother.

The interesting issue concerns the actions of the lower NY court. On November 14, 2013, a five-judge panel of the NY appeals court said that Ms. McKennna's basic rights had been violated. The court announced that "Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty." The court further rejected that a mother needed to somehow arrange her relocation with the father with whom she only had a brief relationship.

This unusual case concerns pre-birth relocation. In this case, the parties were neither married nor residing together at the time of the birth. The father had sent a text to the woman that could be read as indicative that he wanted little to do with the pregnancy. The parties are scheduled to go back before the lower NY court in late November 2013.

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