Waldlaw Blog

Sunday, November 24, 2013

The Miller-McKenna Custody Battle and the Rights of Pregnant Women

My dear friend Maggie Geddes, employment lawyer extraordinaire, sent me a note this morning about an article she saw in today's New York Times.  Although I had not previously been aware of the Miller-McKenna case discussed in the article, it fits right into an area of family law in which I have been taking an interest for some time: the special issues that come with unintended procreation by people who have no commitment to each other.  I recently wrote an article on this topic for the AFCC-CA Newsletter.

In the Miller-McKenna case, a single woman (McKenna) and a single man (Miller) met through a professional matchmaking service.  They only dated for a few months, but McKenna ended up pregnant.  A former marine and active firefighter, McKenna made the decision while pregnant to relocate from California to New York to pursue her education at Columbia University. 

Finding that McKenna had "absconded" with the fetus, a New York trial court transferred custody from McKenna to Miller, who flew to New York to take the baby from McKenna in September, when the baby was 7 months old.  Now, an appellate court has reversed that ruling, instead finding that a pregnant woman has a constitutional right to travel -- including the right to relocate -- regardless of the location of the baby-to-be's father.

As with so many of these cases, there is a theme in the Miller-McKenna case of the father having suggested terminating the pregnancy; the mother having decided against getting an abortion; and the mother then taking the position that -- since the father didn't want the baby to begin with -- he should not have any say in the baby's life.  But this case raises another issue -- the rights of women to be treated as people with lives and goals and aspirations, and not just as wombs.  McKenna was offered the opportunity of a lifetime -- the chance to get a degree from Columbia University.  The thought that she should have turned down that opportunity because she was pregnant with the baby of a man with whom she did not have a meaningful relationship, and who did not want a relationship with her, is pretty outrageous. 

This case is distinguishable from the much more complex (and much more common) relocation cases where a woman wants to move after a child has been born and established a meaningful attachment to its father.  In those cases, the move has the potential to sever -- or at least severely erode -- a bond that already exists, to the child's presumptive detriment.  Courts have recognized that even in these cases, the woman has a constitutional right to move -- the issue for the court is whether she gets to take the child with her, or whether the child should remain behind with its father.  But where the child is not yet born, there is no issue of severing an established bond, the woman's constitutional right to move on with her life must control, and her decision to do so should not be held against her in subsequent custody proceedings.


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