When an Unborn Child Is Moved Across State Lines

McK v. M. is currently before New York's Appellate Division, which is being asked to decide if a New York Family Court referee's decision not to exercise jurisdiction over a child custody case was the correct one.

The parties are Olympic skiing medalist Samuel Bode Miller and his former girlfriend, Sara McKenna. Their relationship ended after McKenna became pregnant with the couple's son. McKenna, an ex-marine, then moved to New York to attend Columbia University on the GI Bill. The child, born in New York in February of this year, was still in utero at the time of McKenna's move.

Miller, who had brought a suit in California to establish his paternity of McKenna's then-unborn child, wanted the issues of custody and support decided there. McKenna wanted New York to handle these questions. In May, Family Court referee Fiordaliza Rodriguez slammed McKenna for “her appropriation of the child while in utero.” Although Rodriquez conceded that McKenna had not actually “abducted” the child, she called the mother-to-be's decision to move from California to New York “reprehensible,” and declined to consider the custody case. That left in place an earlier California decision that granted physical custody of the baby to his father.

The Appeal

On appeal to New York's Appellate Division, arguments involved not only the question of the proper exercise of jurisdiction, but also of a pregnant woman's right to freedom of movement vs. the rights of a father-to-be. One of McKenna's attorneys, Naved Amed of Amed Marzano & Sediva, told the panel that Rodriguez's ruling resulted in the “peculiar conclusion” that “pregnant women will not be welcome in this state.” He continued, “We have created a class within New York that does not benefit from equal protection, from due process.”

The case brings to mind long-settled disputes over the rights of a man to influence a woman's decision to obtain an abortion. The U.S. Supreme Court addressed that issue in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (U.S. 1976). There, a challenge was made to a Missouri law that required a married woman to obtain her husband's permission prior to having an abortion. The Supreme Court's Roe v. Wade holding had already ensured a woman's legal ability to have an abortion, but the Missouri law purported to preserve the rights of all married parties by abridging the abortion right for married women.

According to the Brief for the Appellee representing the State of Missouri, recognizing “that the consent of both parties is generally necessary ' to begin a family, the [Missouri] legislature … determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent.” The Supreme Court was not swayed, and struck down the law. It addressed the issue of apparent unfairness to the man in these situations, stating, “We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” Thus, in the United States (although not in many other countries) the question whether to terminate a pregnancy is left to the woman alone.

Which State Should Decide Custody?

All 50 states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It provides that the state to decide custody issues is the home state of the child and at least one person acting as his parent for at least the previous six-month period. If the child is less than six months old, then the state in which he was born, coupled with his custodial parent's home state at the time of filing, should exercise jurisdiction.

Published New York decisions defining the “home state” of a very young child are few, but B.B. v. A.B., 31 Misc. 3d 608 (Sup. Ct., Orange Cty. 2011), is instructive. In that case, a seven-months' pregnant woman moved from her and her husband's marital home in Orange County, NY, to her parents' home in Minnesota. Although she said that she planned to return, she did not. The couple's child was born in Minnesota on Jan. 29, 2011. The following month, the father sought to have custody issues adjudicated in New York. Justice Lawrence H. Ecker explained, “In most cases, a less-than-six-month-old child achieves 'home state' status upon birth. However there remains the issue when the child and parent relocate during the initial six months (not present here), or the child is born in a state where neither parent resides, as petitioner contends has occurred here. This issue has yet to be addressed in New York.”

The father relied on the Illinois case of In re D.S., which stood for the principle that, for custody purposes, crossing state lines in order to give birth does not convey “home state” status on the visited state. In re D.S., 217 Ill 2d 306 (2005) (trip to Indiana two days before birth cannot remove child from jurisdiction of Illinois courts). The B.B. v. A.B. court was in accordance with In re D.S. that the place of birth should not necessarily control; the question must be whether the parent who lived with the child in the disputed state may be considered a resident of that state or as someone simply visiting or passing through. It therefore looked to the mother's intentions to in traveling to Minnesota.

Judge Ecker ultimately decided that, in accordance with the UCCJEA, Minnesota should be considered the child's home state because the mother grew up in Minnesota; moved back to her parents' home after a fight with her husband; did not return to New York when she said she would; applied for Minnesota driver's and teacher's licenses; sought employment in Minnesota; and found doctors for herself and her child in that state.

Sometimes, Life Just Isn't Fair

Nothing in the McK v. M. referee's decision indicated that anyone would try to actually prevent the mother from moving out of California while pregnant. Still, the disparaging language employed by the referee in describing McKenna's move shows that her action in relocating to a new state to pursue an education could be, and was, held against her. And when faced with the specter that sanctions may be imposed for moving between states while pregnant, the practical effect may be that expectant mothers will think twice.

The more reasonable approach, and one that does not threaten to place limitations on a woman's liberty, is that of Justice Ecker in B.B. v. A.B.: Assume the child's state of birth and the place it has lived since that time, with a parent, is his home state. If there is some doubt concerning the reason for the parent's move to that state, however, conduct an inquiry into the genuineness of the move. Had McKenna, by moving to New York to attend school (presumably for several years), changed her own home state to New York? If so, then her very young child, born in New York, should be considered a New Yorker.

Of course, a man is at a disadvantage in this scenario, as he cannot prevent the mother of his child-to-be from moving out of state. Once there, she may establish a new state of residence that will convey jurisdiction to decide custody issues on that state. But, as with the decision not to carry a fetus to term, as stated by the U.S. Supreme Court in Planned Parenthood v. Danforth, “[I]t is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy.” So, if she wants to move from the father's state to another, as between the father's and mother's legitimate interests, when a conflict arises, the balance should probably weigh in her favor ' all personal opinions aside.

Janice G. Inman is Editor-in-Chief of this publication.

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Can an adult's decision to move to a new state be considered “reprehensible behavior”? Well, maybe, if she is pregnant. That is according to a New York Family Court referee, who recently declined to consider a custody case, instead letting a California court decide it, despite the fact that the child in question was born in and resided with his mother in New York.

Certainly, moving a child who is the subject of custody order out of state can land a parent in trouble, and the courts of the state from which the child was removed will retain jurisdiction over the matter so long as it is raised within a reasonable time of the wrongful move. But the case of McK v. M. puts an unusual twist on the question: In the context of a custody dispute, at what point does a parent's right to move where she chooses become legally abridged by wishes of the other parent? Is it soon after conception or some time after birth?

The Circumstances

McK v. M. is currently before New York's Appellate Division, which is being asked to decide if a New York Family Court referee's decision not to exercise jurisdiction over a child custody case was the correct one.

The parties are Olympic skiing medalist Samuel Bode Miller and his former girlfriend, Sara McKenna. Their relationship ended after McKenna became pregnant with the couple's son. McKenna, an ex-marine, then moved to New York to attend Columbia University on the GI Bill. The child, born in New York in February of this year, was still in utero at the time of McKenna's move.

Miller, who had brought a suit in California to establish his paternity of McKenna's then-unborn child, wanted the issues of custody and support decided there. McKenna wanted New York to handle these questions. In May, Family Court referee Fiordaliza Rodriguez slammed McKenna for “her appropriation of the child while in utero.” Although Rodriquez conceded that McKenna had not actually “abducted” the child, she called the mother-to-be's decision to move from California to New York “reprehensible,” and declined to consider the custody case. That left in place an earlier California decision that granted physical custody of the baby to his father.

The Appeal

On appeal to New York's Appellate Division, arguments involved not only the question of the proper exercise of jurisdiction, but also of a pregnant woman's right to freedom of movement vs. the rights of a father-to-be. One of McKenna's attorneys, Naved Amed of Amed Marzano & Sediva, told the panel that Rodriguez's ruling resulted in the “peculiar conclusion” that “pregnant women will not be welcome in this state.” He continued, “We have created a class within New York that does not benefit from equal protection, from due process.”

The case brings to mind long-settled disputes over the rights of a man to influence a woman's decision to obtain an abortion. The U.S. Supreme Court addressed that issue in Planned Parenthood of Central Missouri v. Danforth , 428 U.S. 52 (U.S. 1976). There, a challenge was made to a Missouri law that required a married woman to obtain her husband's permission prior to having an abortion. The Supreme Court's Roe v. Wade holding had already ensured a woman's legal ability to have an abortion, but the Missouri law purported to preserve the rights of all married parties by abridging the abortion right for married women.

According to the Brief for the Appellee representing the State of Missouri, recognizing “that the consent of both parties is generally necessary ' to begin a family, the [Missouri] legislature … determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent.” The Supreme Court was not swayed, and struck down the law. It addressed the issue of apparent unfairness to the man in these situations, stating, “We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” Thus, in the United States (although not in many other countries) the question whether to terminate a pregnancy is left to the woman alone.

Which State Should Decide Custody?

All 50 states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It provides that the state to decide custody issues is the home state of the child and at least one person acting as his parent for at least the previous six-month period. If the child is less than six months old, then the state in which he was born, coupled with his custodial parent's home state at the time of filing, should exercise jurisdiction.

Published New York decisions defining the “home state” of a very young child are few, but B.B. v. A.B. , 31 Misc. 3d 608 (Sup. Ct., Orange Cty. 2011), is instructive. In that case, a seven-months' pregnant woman moved from her and her husband's marital home in Orange County, NY, to her parents' home in Minnesota. Although she said that she planned to return, she did not. The couple's child was born in Minnesota on Jan. 29, 2011. The following month, the father sought to have custody issues adjudicated in New York. Justice Lawrence H. Ecker explained, “In most cases, a less-than-six-month-old child achieves 'home state' status upon birth. However there remains the issue when the child and parent relocate during the initial six months (not present here), or the child is born in a state where neither parent resides, as petitioner contends has occurred here. This issue has yet to be addressed in New York.”

The father relied on the Illinois case of In re D.S., which stood for the principle that, for custody purposes, crossing state lines in order to give birth does not convey “home state” status on the visited state. In re D.S., 217 Ill 2d 306 (2005) (trip to Indiana two days before birth cannot remove child from jurisdiction of Illinois courts). The B.B. v. A.B. court was in accordance with In re D.S. that the place of birth should not necessarily control; the question must be whether the parent who lived with the child in the disputed state may be considered a resident of that state or as someone simply visiting or passing through. It therefore looked to the mother's intentions to in traveling to Minnesota.

Judge Ecker ultimately decided that, in accordance with the UCCJEA, Minnesota should be considered the child's home state because the mother grew up in Minnesota; moved back to her parents' home after a fight with her husband; did not return to New York when she said she would; applied for Minnesota driver's and teacher's licenses; sought employment in Minnesota; and found doctors for herself and her child in that state.

Sometimes, Life Just Isn't Fair

Nothing in the McK v. M. referee's decision indicated that anyone would try to actually prevent the mother from moving out of California while pregnant. Still, the disparaging language employed by the referee in describing McKenna's move shows that her action in relocating to a new state to pursue an education could be, and was, held against her. And when faced with the specter that sanctions may be imposed for moving between states while pregnant, the practical effect may be that expectant mothers will think twice.

The more reasonable approach, and one that does not threaten to place limitations on a woman's liberty, is that of Justice Ecker in B.B. v. A.B.: Assume the child's state of birth and the place it has lived since that time, with a parent, is his home state. If there is some doubt concerning the reason for the parent's move to that state, however, conduct an inquiry into the genuineness of the move. Had McKenna, by moving to New York to attend school (presumably for several years), changed her own home state to New York? If so, then her very young child, born in New York, should be considered a New Yorker.

Of course, a man is at a disadvantage in this scenario, as he cannot prevent the mother of his child-to-be from moving out of state. Once there, she may establish a new state of residence that will convey jurisdiction to decide custody issues on that state. But, as with the decision not to carry a fetus to term, as stated by the U.S. Supreme Court in Planned Parenthood v. Danforth, “[I]t is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy.” So, if she wants to move from the father's state to another, as between the father's and mother's legitimate interests, when a conflict arises, the balance should probably weigh in her favor ' all personal opinions aside.

Janice G. Inman is Editor-in-Chief of this publication.

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