Custody Rights in Perspective

“Especially with current political pressures to recognize separate legal rights for fetuses, there will be increasing calls on the courts to fault a pregnant woman for moving, to restrain women from living their lives because they’re pregnant.” 
Sarah E. Burns, head, Reproductive Justice Clinic, New York University law school.

Searching for that partner. Perhaps the wrong place to begin is with a man unwilling to commit, other than casually. In the case of the American downhill gold medalist skier Bode Miller, it hadn't been lack of opportunity that had constrained him from settling down in a firm monogamous relationship. One of his previous relationships resulted in a daughter, five years ago. Perhaps he was, even then, aiming for a son.

Damon Winter/The New York Times  Sara McKenna, a former Marine, was briefly involved with Bode Miller and then, pregnant with his child, moved to New York to study at Columbia. He then won temporary custody of the baby.

That son did eventuate, the result of yet another short-term relationship. The 36-year-old Miller dated a former Marine and firefighter, now studying at Columbia University, Sara McKenna. That was another relationship that somehow failed to pan out and perhaps the reason can be read in the fact that Mr. Miller began dating his current relationship partner, whom he later married, just about the time that Ms. McKenna became pregnant.

One can imagine how disappointingly irksome that must have been to Ms. McKenna, perhaps labouring under the impression that Mr. Miller was serious about their relationship, only to discover that his penchant for looking at other pastures took him elsewhere even while he sealed their relationship with the permanence of a child, simultaneously sundering it with the impermanence of wandering off.

The male impregnates the female as the by-product of a bedroom romp which one of them might have considered to represent a serious commitment to a future together. The woman is burdened with carrying the pregnancy to completion, and delivering a child. How this can be considered an equal investment in the future of a child is beyond belief.

Yet, when Ms. McKenna left California for New York where her baby was born, Mr. Miller laid suit and a family court referee ruled against her for "the appropriation of the child in utero". Her "reprehensible" behaviour and "unjustifiable conduct", merited the award of custody of her child to Mr. Miller. And it is Mr. Miller and his now-wife, Morgan Beck Miller, who raise the child, eight months of age.

Jean-Christophe Bott/European Pressphoto Agency     Mr. Miller with his wife Morgan and his son.

Understandably, Sara McKenna is desperate to have her child returned to her. A Manhattan appeal court has overturned the original ruling. She may now seek the return of her child through the courts. If the original ruling were to be allowed to stand, argue Ms. McKenna's lawyers, it would result in a pregnant woman being forced to have permission where she may live from a man she has no relationship with.

This was an instance when the mother of a child was accused of kidnapping her own child while that child was not yet born, because she felt it was time to get on with her life and move to another state, leaving her former relationship with a man who had sundered that relationship and taken up his own new life with another woman with whom he obviously felt he had more in common than with the mother of the child.

Their relationship, originally through a dating agency, lasted a mere month and a half. How that might qualify him to be regarded by a court of law as a responsible parent, one to whom custody would be preferential to the birth mother is mind-boggling. When she discovered herself to be pregnant she asked that he think of being an involved father, but he expressed little interest.

A text message in response to being asked to accompany her for an ultrasound says it all: "U made this choice against my wish". How does that sound for involvement, commitment and reason to force a mother to relinquish her child to an entitled sperm donor?


With the stress of the pregnancy, Ms. McKenna came to the realization she would be unable to continue her work as a firefighter. And it was at that point she began to consider attending college to further her education. In October 2012 she texted Mr. Miller: "Just a heads up, I met with an advisor from Columbia today and we will probably be moving there in the fall."

The university, she felt, offered the best support for a new parent.

But then, coincidentally, Mr. Miller took legal action, filing a declaration of paternity and interest in having custody of the unborn child, in San Diego. Once her baby was born, Ms. McKenna filed a counter application in New York for temporary custody. Which was when the peculiar charge of "unjustifiable conduct" and "forum shopping" was made by the Family Court referee, despite the baby having been born and living in New York.

And the Family Court in San Diego granted primary custody to Mr. Miller. Ms. McKenna described Mr. Miller and his wife arriving at her New York apartment on September 4, as they "took the baby out of my arms, dropped it in a car seat and drove away". She has seen her child since then for a total of ten days, and was anticipating having him stay over with her for Thanksgiving weekend.

In their reversal of the May decision, the New York appeals panel rejected the suggestion that "the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship".  Both of the child's natural parents have been ordered to appear in New York Family Court where Judge Adetokunbo O. Fasanya will review the controversial issue of temporary custody and visiting rights.

And perhaps it's not too much to anticipate that the entire matter will be seen in its proper perspective of a mother's rights and a casual father's comeuppance on primary entitlements.