McKenna moved to New York in December, when she was seven months pregnant. Two days after her baby was born in February 2013, she went to New York Family Court to petition for custody—the legal basis for keeping the baby with her and making decisions about raising him. The first step of the Family Court’s job—deciding whether it had jurisdiction, or the authority to hear the case—should have been easy. New York law, which is based on a uniform code for all the states, says that New York courts have jurisdiction when New York is the child’s “home state.” This was obviously the case for McKenna and Miller’s baby (she calls the baby Sam; he calls him Nate), who was born in New York. But the New York family judge who heard the case (called a referee for some reason) seemed to have it in for McKenna when he sent the case back to the California courts, accusing her of moving to New York as an underhanded attempt at “forum shopping”—picking one court over another. The judge/referee also overlooked the fact that “child” in state custody law does not mean unborn child, as in fetus, which is what the “child” was when McKenna moved east.
A list of advocacy groups for women and reproductive rights have banded together on McKenna’s behalf, as they should. “I’ve never heard of a restriction on a pregnant woman telling her that she can’t move to another state,” University of Florida law professor Lee-Ford Tritt told me over the phone. “I’m outraged by this idea that they even ask about her motive. Columbia is a phenomenal school, but I don’t care if she just liked the bagels and pizza in New York better.”
Agreed: It is not up to fathers, or courts, to dictate where pregnant women live. Everyone has the fundamental right to make this decision for him- or herself. If you look at this case from Miller’s perspective, though, you can see why he moved aggressively in the California courts once he decided he wanted to play a role in his son’s life. “I kind of get it, from the dad’s perspective,” Tritt said. “Once she leaves the state and has that baby in New York, the New York court might grant him custody rights, but they’re not going to tell her to move back to California so he can see the baby more. They’ll tell him to travel to New York.” What’s a dad to do in such a situation? In the best scenario, parents work this out themselves. If not, courts step in after a child is born.
What happened instead, because of the initial wrongheaded New York ruling, was that in September, the baby went to live with Miller and his wife in California, after the California court granted him primary custody. (The wife had the bad taste to reportedly put up a blog post, since deleted, in which she said that she and Miller provided a “loving and balanced family,” unlike McKenna, who she said often used child care.) Now the usual gender roles are reversed: It’s Miller who has taken care of the baby for the last couple of months, and McKenna who is trying to get her now-9-month-old child back. She has seen him for only 10 days since she had to hand him over, according to her lawyer. And while the New York appeals court says that New York should take over this case, and Miller and McKenna were due in court Monday for a hearing about custody and visitation, the California courts haven’t given up jurisdiction yet, as the New York appeals court said should happen.
This case offers up one lesson and at least one big question. The lesson is that it’s different for a family court to weigh in about where parents may live once a child has been born than beforehand—or it should be. This is one way in which a pregnant mother and an expectant father simply are different. As the brief by the women’s groups advocating for McKenna argues, “eggs, embryos, and fetuses are necessarily inside the women that carry and nurture them in their bodies. The distinction is everything. ... A pregnant woman cannot help but dictate the geographic itinerary of the egg, embryo, or fetus that by biological necessity goes where she goes.” That doesn’t mean the mother wins the custody battle in the end. But it does mean she shouldn’t be penalized for moving to another state before the baby is born.
That’s the easy part. The hard question is what courts should do when one parent wants to move far away after a child has been born, and the other parent wants to remain closely involved in the child’s life. In the old days, courts often gave priority to the mother. Now they generally are supposed to value a child’s relationship with the father just as much, and use the traditional standard of best interests of the child to decide what to do about custody in these cases. This makes for very tough calls, and the issue has been “festering” in state courts for 20 to 25 years, according to Joan Heifetz Hollinger, a family law expert at the University of California–Berkeley. Because the fight over location in the McKenna-Miller dispute began even before the baby was born, it “seems to blur the lines between the best interests of the child and maternal versus paternal rights,” as Tritt points out. That’s unusual. But the dilemma posed by parents who both love their children, but don’t want to or can’t live near each other, is both common and confounding.