Lots of lively discussion on yesterday’s post. It might make sense to read that post to get up to speed. I tried to respond to some of the comments but it occurred to me that it might more effectively move the discussion along to do a new post. (I find reading the endlessly nested comments can be difficult.) In doing this, it should be clear that I am building on/responding to a lot of points other people made here.
You may recall that the key issue in the case (which will be heard again today) is whether McKenna (the mother of the child) did anything “wrong” when she left CA where Miller (the father of the child) lived in order to attend school in NY. One critical point to note is that she made this move when she was pregnant (not, apparently, for nefarious reasons, but because a semester starts when it starts.) The thing that really ticked me (and many other people) off is that the NY judge seemed to consider a pregnant woman moving as some sort of child relocation issue.
This brings me to two different points. First–on relocation cases generally. There’s a substantial body of case law out there about how to deal with instances where there separated parents sharing custody of a child and one parent wants to move out of the area. You could see this case as a variation on that problem. I think to some degree my familiarity with this line of cases has shaped my response to this case.
On the relocation problem generally there are two key points that have to do with gender. Both may have some connection to this problem.
1. Courts are mostly concerned when the parent with primary custody wants to move. If the parent who visits the child wants to move, it’s not seen as a legal problem. Consistent with this, I’ve rarely seen any restrictions on the right of the non-custodian’s relocation but you see restrictions on the custodian’s freedom to relocate with some regularity. (You can see why this is, I think. But we can explore it if need be.)
It turns out, again for reasons I don’t plan to discuss right here, that it is far more common for mothers to have primary custody than for fathers. That means that the asymmetry noted in the preceding paragraph turns out to work in a gendered fashion: Fathers are typically free to relocate and mothers are not. It shouldn’t be a perfect match, but I must say that every relocation case I’ve seen concerns an effort by a father to prevent a mother from relocating.
2. Once upon a time, family law was quite gendered. Men had the obligation to support the family and women had the obligation to keep the house. We’ve left those days behind–formally at least. There’s no overt gender role assignment in modern family law. But I think it’s fairly clear that there are some lasting effects of the earlier gender presumptions. You cannot so change social expectations by changing the text of a statute.
At least for some people–including some judges, who are after all people–when a man moves to better support his family he’s doing the right thing. Thus, he is viewed favorably or benignly. When a woman does the same thing, it is viewed somewhat differently. More broadly stated, I think that men who really invest in their careers aren’t as frequently condemned as parents as are women who do the same thing–because a man’s historical role as parent has been to be the breadwinner while a woman’s has not.
I think both of these aspects of the general relocation problem are at play in the Miller/McKenna case. I do think that if Miller had moved for some great job opportunity, it would not have aroused the same feeling in a judge that McKenna’s move did. To vastly oversimplify–he’s supposed seize career opportunities–she’s not expected to do so. And I think we (the public?) would have figured that he could still play a role in the child’s life–returning to visit as he was able. I disagree with those who would say we would have characterized his action as abandonment. If he had moved for a good reason–like a better job or education–I don’t think it would be viewed that way. (I recognize, of course, that this is all speculation, too. That means we cannot really settle this disagreement.)
Second, apart from all this relocation stuff, there’s another issue in this case–the question whether relocation principles apply before the child is born. If the child had been born and then McKenna had moved, it would be a standard relocation case. But McKenna moved before the child was born. That distinction matters to me. At the time McKenna moved she is not a legal mother and Miller is not a legal father–and so the whole relocation analysis is (in my view) inapplicable. This may just look like timing, but it’s a matter of important principle to me.
I can see that this is in some ways a curious result. If she moves in December–no legal issue–even though we know she’s about to give birth to the child. If she moves in March–legal issue. I guess I have two thoughts about that. First, I draw a bright and heavy line between pre-birth and post-birth. I think the game changes at that moment in dramatic ways. But second, the line may look even more important in this context because of the way the relocation cases have evolved. If we handled those cases more equitably, then maybe the timing issue wouldn’t look so stark.