Pregnancy, Relocation, and the Right to Travel

On behalf of The Marks Law Firm, L.L.C. posted in Paternity, Relocation, and Child Custody on Wednesday, November 27, 2013

A case involving Olympic skier Bode Miller has received a great deal of media attention because it touches on some very sensitive and personal rights.

It seems that Bode Miller met Sara McKenna through an online dating website; their very brief relationship resulted in pregnancy.  Miller wanted McKenna to terminate but she decided to have the baby.  At the same time, Miller got married to his girlfriend.  As the pregnancy proceeded, Miller decided to file a paternity suit in California, and McKenna chose to move to New York to attend Columbia University.  Two days after giving birth, McKenna filed her own paternity suit in New York.  Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the only state with jurisdiction over the child was New York, since the child had resided in New York since birth.

But a strange thing happened.  The New York judge hearing the case decided that California also had jurisdiction (even though the child had never resided in California), perhaps the first case to find “fetal” jurisdiction under the UCCJEA.  The judge further added that McKenna forum shopped by moving to New York, so he sent the case to California to proceed on the petition for paternity filed by Miller – a petition for custody of a fetus at the time he filed, something the law does not recognize.  And just when you think the case cannot get stranger, the California court awards Miller custody and orders McKenna to turn over the child.

McKenna filed an appeal in New York, and the New York appellate court overturned the judge’s mistaken opinion.  It made clear that only New York had jurisdiction over the child.  The ruling rendered void all of the actions in California.  However, California has not fully complied, still deciding whether to keep jurisdiction.

It seems certain that California will soon acknowledge New York as the only state with jurisdiction and order the return of the child to McKenna, and New York will hear the merits of the paternity suit.  But this case has raised several important issues, some simple, some very difficult to resolve.

First, adults have a constitutional right to travel according to the Supreme Court.  A state cannot infringe on that right unless another countervailing state interest is at stake – in this case, the best interests of a child over whom the court has jurisdiction.  Because a court cannot adjudicate custody of an unborn fetus, and a court cannot discriminate against woman because of pregnancy, no law prohibits an unmarried pregnant woman from moving out of the state where the father resides to another state, for whatever reason.  Ironically, had Miller and McKenna been married and Miller filed for divorce prior to the move, the court could have prevented the move to preserve the status quo.

Second, paternity suits usually do not involve forum shopping because of the UCCJEA, which gives the state in which the child has resided for at least six consecutive months preceding the petition for paternity priority as the “home state” of the child.

Third, the disparity between children born of wedlock and children born out of wedlock gives mothers a jurisdictional advantage.  Suppose in the Miller/McKenna matter Miller wanted the child and a relationship but McKenna chose to cut ties to Miller and relocate with no concern for his participation in the child’s life.  In this scenario, no law would prevent McKenna relocating across the country and filing for custody after the birth of the child.  Miller would have to go to New York to defend and face a tough custody battle that would make it highly unlikely he would be able to bring mom and child back to California, putting him in the position of choosing where to reside (which may involve a career choice) and custodial time with his child.

Fourth, relocation statutes in general impose the opposite burden on parents who divorce and subsequently want to relocate.  Courts generally frown upon a relocation that will significantly impair the frequent and meaningful contact of both parents with the child.  If one parent remarries and wants to move away, courts may decide to give the non-relocating parent custody.  The courts may take a more favorable stance to the relocation if the relocating parent is the principal financial support and the relocation is directly related to maintaining or improving employment.  In general, courts take the view that the child should have close and continuing contact with both parents, which means keeping the parents close, particularly if neither has the financial means to pay for transporting a child back and forth across the country.  Courts would prefer parties work out relocation issues on their own; but if asked to decide, the best interests of the child standard more often than not keeps a custodial parent close to the non-custodial parent, which many see as a bias against women and mobility.

What about the right to travel?  As noted, courts have rejected the notion of the right to travel trumping relocation.  In this situation, the best interests of the child standard governs and courts must evaluate every proposed move in that context.  Because we live in an increasingly mobile society where women are co-equal earners with men, the problems of relocation never have been so acute.  Women are significant parents and earners, and so are men.  Eventually, the courts will have to figure out a more sophisticated method of handling these situations, particularly in difficult economic situations.

Relocation cases often seem to be the most difficult of challenges because of the strong arguments on both sides.  In such cases, having an attorney who can help present to the court how the greater harm would fall to your side is key, but also having an attorney with the creativity to work out a compromise that takes everyone out of the “win or lose” posture.

If you have questions about relocation, contact us – our St. Louis family law attorneys can help.