When Do Father’s Rights Mean Controlling the Mother?

There’s a lively conversation in the comments of the most recent posts here–one I mean to pick up and move along shortly.  But I feel that I need to take time out to blog about this story, which I must confess is one that I’m really bothered by.    It’s from the NYT, which means that for some of you it may be on the wrong side of a pay wall.  I’m sorry about that, but it does seem to be their story.

I’ll start with a summary.  It’s obvious that there are facts in dispute and I’ll try to note specifically where that is the case.   Most of what seems to me to be important is actually not in dispute.

Bode Miller and Sara McKenna met via a high-end dating service.   They both lived in California.   Miller is an Olympic skier.   McKenna is a former Marine and firefighter.  He’s now 36 and she’s 27, but I think they were dating in April/May, 2012.

They dated for about a month-and-a-half.   When they split up, McKenna was pregnant, although obviously she wasn’t very far along.   At about that time Miller began to date  Morgan Beck who he married in October, 2012.

I think one thing the parties do dispute is Miller’s general attitude towards the pregnancy.   (I’m not sure whether you all think this important or not.)   McKenna says she asked him to go to an appointment for an ultrasound in June.   He declined and sent a text saying ““U made this choice against my wish.”   (He may agree he sent the text–that’s not clear to me.)

In any event, by the time fall rolled around, McKenna had decided that she wanted to go to college.    She told Miller in October that she was thinking about Columbia University in NYC–a very good school that has a program for non-traditional students.   (As an older student who was also a parent, McKenna would indeed be a non-traditional student.)   Meantime, Miller filed a declaration of paternity in CA, asserting his interest in custody.  (As far as I can tell, there has never been any dispute about Miller’s status as the legal father of the child–just in case you think that is where I am going.)

It appears that McKenna enrolled in Columbia, moved to NY, and gave birth there.  (If she was seven-months pregnant in December 2012, this must have been around February, 2013.)   She named the child Samuel Bode Miller-McKenna.  After the child was born she sought temporary custody.

Now there is no doubt that there is a real custody issue here.   McKenna and Miller are both legal parents and, as far as I can tell, they are both perfectly fit legal parents.   That means each has a right to spend some time with the child.   That’s not necessarily going to be easy to accomplish given their life choices, but it’s pretty much the stock-and-trade of family law.  Not really worth much discussion here (and maybe really not, since there is no issue of legal parentage.)

But here’s what’s noteworthy, outrageous and infuriating:   The judge in New York castigated McKenna for having moved to go to school.

While Ms. McKenna “did not ‘abduct’ the child,” the court said, “her appropriation of the child while in utero was irresponsible, reprehensible.”

There’s a part of me that just wants to repeat this in tones of incredulity.   Her “appropriation” of the child while the child was “in utero?”   How exactly did she “appropriate the in utero child?   By living her life?  By enrolling in the best college program she could find?  Is the court’s point that she was obliged to stay near wherever Miller happened to be, whether that was best for her or not?

I cannot tell what happened here–whether Miller had some evidence that the move to NY was all some clever ruse.  But given that she did in fact enroll at Columbia and made no effort at all to deny Miller’s paternity, I don’t see what would support that claim.

In any event, apparently on the above-noted theory, the court decided to leave the matter in CA, which is unusual, to say the least, given that the child was born and lived in NY.    The CA court then granted custody to Mr. Miller, who took the child in September.

Meantime, a New York appeals court had a look at what the New York trial judge had done and the panel was not pleased.

This month, in its scathing reversal of the May decision, the appeals panel in New York rejected the suggestion that “the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship.”

This means the case now goes back to the NY trial court–tomorrow–to consider custody and visitation.  (There’s the possibility here of a NY/CA dueling judges outcome, too.)

I won’t rant at length here, though I must say it is tempting.   This is the perfect illustration of how a woman who is pregnant can end up under the control of the man who will be the father of the child-to-be.    Pregnancy means that the fetus is always with her so that if she moves, she can be said to have absconded with the child.  No such constraint is placed on the man, who can go where he will.

To tie this back to the blog, I worry a great deal that if we are not careful, an attachment to genetics will give the man just as great a claim as the woman–even during the pregnancy–without regard to the way that claim will play out.    I’m not saying it has to be that way–I’m not sure it does.  But the heavy emphasis on genetics as the critical factor often serves to undermine arguments that the pregnant woman and her male co-genetic parent are not in the same position.




57 responses to “When Do Father’s Rights Mean Controlling the Mother?

  1. This sort of decision will discourage women from naming the fathers, itself a cornucopia of issues.

    • Indeed it will. And it is one of the reasons I think I can muster sympathy for women who are reluctant to name the men and/or who don’t want to acknowledge them as legal parents. You don’t see this working in the flip side. No court would say that Miller cannot go off and ski in wherever because he has an obligation as a parent. And he could certainly relocate. Because he’s not pregnant and the “child” doesn’t therefore travel with him.

      • If a fit father went off to “ski wherever” (i.e., to perform what is essentially his job) and left a woman pregnant with his child, you better believe he would be excoriated in court and in the media. This father, apparently fit, has had the experience both of being criticized for allegedly not wanting his child in his life AND for wanting his child in his life. I am not taking sides, but it is making me a little crazy to see how women are jumping on the anti-father bandwagon just because some family court judge said something women found offensive.

        • Apparently they had sex twice. The second time in Florida. The court didn’t simply say something offensive, the court violated her Constitutional liberties. I’m not simply concerned with her individual circumstance. I’m concerned about the rights of all pregnant women.

          She said she went to school (at Columbia!) because she didn’t think working as a firefighter was in the best interest of her unborn child.

        • I think I spoke intemperately (with the skiing thing) but in fact, if the father had left town for a better opportunity–better job, better education–I think he would be treated differently. Skiing happens to be Miller’s chosen work. I shouldn’t have been snarky about that. And of course, while I really am convinced that a man who left to get a new/better job would have been treated differently by a court–been treated as “doing the right thing”–I think people can disagree about this prediction.

  2. That was an absolutely outrageous judgement by the New York court.

  3. Lately I have been wondering if religious and conservative groups work against 3rd party reproduction and promote the genetic connection out of a desire to reinforce gender inequalities and reinforce a patriarchal vision of “the family.”

    This case is an example of this concentration on genetics can cause the rights of women to be denigrated.

    The power shifts, in an overwhelming way, to the man, who has the monetary resources to fight a court case and is living in a heterosexual marriage. The right to assert parental custody is directed away from the new mother, despite the fact that breast-feeding the child would be impossible under this custody relationship.

    • Though I didn’t mention it, it appears that one argument Miller and his wife offer is that they can provide a traditional marital home for the child–the presumptive gold standard–while the mother is (I gather) single and a student. It’s actually a fairly common argument–when a father remarries to say that now the child can live in a proper home with a mother and a father. For a variety of reasons, this argument seems to have more traction than the analogous argument by a mother who remarries. I think part of the reason why might be that mothers are less likely to quickly remarry post separation than father are.

      • yes, yes and yes. I had not heard of this case until today. Such an outrageous violation of constitutional liberty — the suggestion that the travel of a pregnant woman may be restricted because she carries an embryo.

        I’m glad that her case was argued pro bono. It’s also good to see that a friend of the court case, put together by several women’s groups (Sarah Burns, Lynn Paltrow), was filed.
        Here’s a link to the brief:

        Click to access Docket%20%23%20V-9682-13%20%20S%20A%20McK%20v%20S%20B%20M%20–%209-26-13.pdf

        This quote from the article is notable:

        “Otherwise, the First Department reasoned, putative fathers could limit the movement of pregnant women, and, “[p]utative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.”

      • interesting idea that a mother’s remarriage is not considered, while a father’s remarriage is. I suppose it is based on the idea that all women are maternal and the fathers new wife is totally peachy pleased to care for another woman’s baby. whereas if the mother’s new husband displays too much interest in the kid he’s probably a pedophile.

  4. This is absurd. A woman can not abscond with a fetus. It goes where she goes. Otherwise the court is basically saying a woman can be made a prisoner of where she currently is if she gets pregnant. I’m glad the appeals court overturned it and I hope a better arrangement can be found.

    • agreed 100 percent. I’m totally outraged. no one is a parent until the kid is born. this however, ties in to the utah legislation we discussed previously- that a man has to have a relationship and offer financial support to the mother during her pregnancy, in order to be considered for paternity following the birth. Don’t you see how this could lead to similar control issues?

  5. A woman who is pregnant can move where ever she wants. A woman who is pregnant who moves for the purpose of making sure that once her child is born he is as far as possible from his fit other parent is not necessarily acting her child’s best interest, but more her own. The question is not what are mother’s rights or father’s rights, but what are children’s rights?

    • She moved to attend Columbia, which gave her a scholarship.

      As a pregnant woman, she has the right to accept a scholarship in another state.

    • Marie is logical

    • I’m not sure whether I agree about the children’s rights being paramount, because I do think that adults have rights as well. But rather than go to that point, I find myself wondering about how we are to know what is best for the child. Is it, for example, better if the mother here can pursue her dreams as the father pursues his, even if it means that they are on opposite sides of the country? Or is it better for the mother’s ambitions to be frustrated so that the child has easier contact with both parents? I don’t think there is a general answer to this question–sure it depends on more specific circumstances. I think I would resist a general presumption that it is always better for the child to keep both parents in geographical proximity.

      • There is an assumption in this reply about the mother’s “dreams.” i have never read about her dreams, only that she moved 3000 miles away in her eighth month of pregnancy after she learned Mr. Miller was filing for paternity and started school, in a General Studies program that accepted all vets, pretty dang quickly, walked away from a house she owned in CA, her car, her family, her friends… all practically on the eve of giving birth. If she had moved after the birth of the child she would have needed court permission to relocate the child. Don’t get me wrong, I still think she had a right to move as a pregnant woman, and I don’t even fault her for doing it, but let’s be real: there is substance to the claim that she moved when and how she did to establish jurisdiction in NY. The narrative about her motives isn’t really supported by much, just created to support a position and women’s rights’ outrage that may have nothing whatsoever to do with this actual situation.

        • Frankly, (lifting this sentiment from University of Florida Law Prof, Lee-Ford Tritt, quoted in an Emily Bazelon Slate article) I don’t care if she moved to NYC for the pizza and the bagels.

          The court should not have questioned her right to travel while pregnant.

  6. Wait, you are all exaggerating. The first CA judge didn’t said that she abducted the baby, and she didn’t say that she didn’t have a right to move while pregnant. She said in spite of that right, it was irresponsible and reprehensible for her to, just as it is for a man to abandon a woman he got pregnant and move across the country, but those are easier to adjudicate now that we have federal laws about child support and federal wage garnishment. It can be legal and irresponsible and reprehensible at the same time. It’s irresponsible because it is now much harder to adjudicate and harder on the child, and she could have stayed in state and found a school, she chose to leave the state for her own interests, above all others involved.

    • It was NY judge. And the judge did indeed say she absconded with the fetus. Ridiculous!

      We live in a country where in pregnant woman are, indeed, allowed to attend schools that give them scholarships.

      Having sex two times with a man does not require them to settle in his hometown. In addition to attending school, women may also move home to be with extended families when pregnant if her boyfriend breaks up with her, tells her she should have an abortion and will not help her with the baby (did you read his tweets?), and marries a new beach volleyball girlfriend.

      Such a lovely couple — they took full custody of said infant, and have posted lots of pictures with new beach volleyball girlfriend cuddling with the new baby on twitter. I bet those pictures were fun to look at for the new mother when her breast milk was drying up.

    • It’s the NY judge who’s opinion is a problem here (in my view), not the CA one. And I don’t think it is irresponsible or reprehensible for the woman to pursue this opportunity. She and Miller were obviously not going to be together–her married someone else. One of her obligations to her child, it seems to me, is to set herself up as a strong and stable parent. She figured being a firefighter wasn’t the best career for a single mother. I respect that choice.

      And she made no effort at all to displace Miller. She told him where she was going. There’s no skipping out.

      Would it have been better if she had been offered and accepted a comparable scholarship at Stanford? Maybe–I don’t know enough to say. But this was the opportunity she had.

      • But skipping out is different than skipping out and taking the baby with you, too. Isn’t that considered abduction to take a baby out of state in a custody dispute? That’s what the judge was castigating her for, taking advantage of her temporary complete legal control of the child. The father isn’t trying to keep that woman from going anywhere in this case, he’d probably let her move to the moon, but as long as he’s going to be having a child, bearing his name (what’s up with that?), and paying child support for a specific child that knows he’s the son of Bode Miller, he wants to care for him and be his dad.

        I do remember back in the nineties a bandmate of mine found out he was being sued for paternity by a girlfriend he’d been seeing before he moved to Boston. It dragged out over a year or so after the paternity test established that he was the father. He kind of bargained his way out of child support by demanding visitation and custody, though the idea of him actually bringing that baby back to his apartment and to band practice was ridiculous, but he was crazy and young enough he might have made it work. She chose to marry a new boyfriend and they would take full custody and he wrote a song called “off the hook.” (We never really played that one out but it was good in practice.) I think some public defender in Iowa and the court there sort of took control of everyone and the poor new boyfriend was pressured into marriage as the key to resolving the situation.

        • You don’t seem to understand the case. No child existed when she moved. She was pregnant and starting a new semester of school.

          Women (even pregnant women) are not obliged by the law to remain in the same town as their ex-flings. They have a constitutional liberty to travel, and that right to travel should not disadvantage women in future child custody cases.

          • What does the right to travel have to do with custody? And a child certainly existed as far as she and Columbia were all concerned, they admitted her to a program based on a child existing. Like any child, it might not be alive in the future, or it might be. But they all acted on the assumption that there was going to be a child, that indeed there already was. I would be very shocked if Columbia enrolled women in that program who were only planning or trying to get pregnant while single. Well I take it back, now that I think of it I wouldn’t be shocked, but that would be reprehensible. It is reprehensible to intentionally create or even recklessly create a person outside of a committed loving marriage.

            • Columbia admitted her because she was an ex-Marine. They have a special program for veterans.

              In the eyes of the law, there was no baby. She was pregnant. She did not chose to take a child out of state. She moved herself out of state for her own reasons.

              She would have had to cut out her uterus and give it to Bode (or have an abortion) in order to not “abscond with the baby.”

              Pregnant women have the right to travel. Pregnancy does not reduce one’s constitutional rights. The NY appeals court also saw that her constitutional liberty may not be restricted.

              • Yeah, we have all agreed it’s not a crime to abscond with a baby in utero, but that doesn’t change the custody situation once the baby is born. Though it does by forum shopping, which is what the judge was disapproving of, as a judge, who feel forum shopping disrespects judges and state courts. But that behavior was only part, at most, of her decision to award the Miller’s custody of the child, which by then was born and the subject of a custody battle.

              • I thought the Columbia program was a special program for single parents and non-traditional (lgbt?) parents.

  7. Oh ya’ll need to stop. What ya’ll need to realize is that parents are of equal importance to their children and so to trapse clear across the country from the other parent interferes with the child’s ability to be around their parent frequently in any reasonable kind of way. With an infant it would make joint custody nearly impossible and it would prevent the father from making a meaningful daily weekly or even monthly contribution to his child’s life and with the cost of airfare it might be prohibitively expensive for either one of them to afford to fly back and forth. I think the idea here is that part of being a parent is to be supportive and encouraging and even protective of the child’s relationship with the other parent. This is easy to do when your married and live in the same house. It is much harder to do in separate homes but it can be done and should be done and it involves not picking up and taking the kid far far away from the other parent which will obviously put a damper on frequent contact and shared child rearing.

    If this woman is that sharp that she can get into Columbia University, she can get into State College in the town where they were both living when they met and were dating because that is where her child’s father lives and that is where he can participate with her in raising her child. Picking up with the kid and just leaving undermines the kid’s relationship with the other parent and when you are a parent, your needs wishes and desires are no longer primary. Yes staying where the other parent can participate in raising your child with you is just something you have to deal with because you loose quite a bit of freedom when you become a parent.

    He’s not trying to control her, he’s trying to fulfill his obligation to their child by being there to physically and financially support their kid. She should be happy about this she should want her child to have a great relationship with the father and she should count her lucky stars that she had a child with a man who is this dedicated to doing the right thing for their child. She had not enrolled in this school prior to becoming pregnant so it’s not like it was her plan all along. What she did actually undermines her child’s relationship with his or her father and for that she should indeed be ashamed of her.

    Look at how you see things Julie. Like he’s trying to control her when all he wants to do is right by their child. He’s not trying to take anything away he is just trying to meet his parental obligations. She chose to give up her freedom to just go where ever she wants without consulting him when she decided to have his baby. When she did that she knew they both would become parents and that ultimately they’d have to be coming to agreement on many things especially where they were both going to live otherwise the child might not get to have both parents in their life daily and surely the child deserves that.

    It’s a lousy thing to do what she did but it was within her legal rights to do without consulting him because their child was not yet born for them to have to have a custody agreement. I’d think that there might be some preemptive custody agreement made if they were not planning to give the child up for adoption, but then he’d have to be really on the ball for that. As it stands she had the baby in another state. I do see why the Judge thought she was not doing right by the kid moving them away from the father of course.

    • He wouldn’t accompany her to the doctor because he didn’t want it, remember?

      • Again timing – once they become parents is when their actions really count as parents. So as I said I think what she did was wrong but she had a right to do it. Ultimately however I think she did something that made it hard for him to be there for the child when the baby is born which is when it counts. It should not count that he was not going to the doctor with her when she’s pregnant. The child gets to loose a father because the father had a bad attitude while pregnant. Children are not a prize you get for good behavior they are an obligation you get when you have offspring and what she did is make it difficult for him to fulfill his obligation and for that she she needs to possibly take some corrective action.

    • The gossip pages say they had sex twice – once in Florida. She’s under no moral obligation to settle in his town. He can move to her town.

      In any case — there was no baby when she moved.

      • Yeah if they are both jet setters who met online or at airports, with no shared physical home state, then that reduces anyone’s moral obligation not to move away from the other. But it also reduced their moral right to have sex together in the first place. Part of attaining that right, marrying is establishing a state in which to have children and raise them according to the family laws of that state. Of course jet setters with no home base can get married too, but they have to pick a state.

        How different would the case be if the embryo was frozen, stored in a clinic? Or in a tank in her possession, but not yet implanted? Or the result of IVF rather than sex?

        And I think the judge wouldn’t have castigated a woman who didn’t know she was pregnant when she moved. She knew she was going to be having a baby, there was a baby as far as she and Columbia were concerned.

        • Absurd. Women do not experience reduced constitutional liberties because they are pregnant. Her uterus is part of her body and she has the right to move while pregnant.

        • John perhaps the judge shares your opinion on all these points from a moral perspective. and the judge is certainly entitled to his or her opinion. but since these opinions have no basis in law, the judge’s responsibility was to put them aside when judging the case.

          If all we want is moral opinions on what she should have done, I can give mine as well as the next guy. judges are judges because they are supposed to be experts as law.

          • The judge took many factors into account when deciding the case, I don’t think her absconding with the baby and forum shopping was the only reason she was found to be less fit than the Millers. She wasn’t being tried for any crime, it was a custody dispute. Judges consider the attitudes of the parents and their respect for the courts, as any angry father is well aware.

            • Bode has more money. He had quickly married another woman, so he had a two-parent household.

              The infant was taken away at 3-months & given to Bode and his new wife. They took the infant to California and have been traveling around the world with the infant for his skiing events. Hopefully the kid is not prone to ear infections because of the airline flights.

              Bode has also been involved in a previous custody fight with a earlier girlfriend. He’s got a 4 year old girl, but does not have custody.

    • it’s none of the court’s business whats reprehensible and what isn’t, as long as there is no law against it, it remains strictly a matter of personal opinion and should not be used to influence the outcome of the case. adjudicate the laws and leave everything else to the person’s conscience. I’m outraged that this happened in my home state of new york!

    • Really Marilynn? It’s a lousy thing to go to university to ensure you can make a proper living to support a child you think you’ll be raising as a single mom — because a guy you had sex with twice says he doesn’t want it? And why, why, why would a woman have more of a responsibility to stay in the same place than a man does?

  8. I agree with you that the New York judge here ruled in a horribly inappropriate way. The mother’s conduct should not have been held against her, as if a substantial change of residence while pregnant automatically constitutes unjustifiable conduct.

    But I don’t really see the force of your last paragraph. You write, “But the heavy emphasis on genetics as the critical factor often serves to undermine arguments that the pregnant woman and her male co-genetic parent are not in the same position.” This seems an odd way to frame this issue. It is the New York judge whose ruling we agree is wrong that is putting the male parent and the female parent in different positions; the father-to-be is permitted to go wherever he pleases, and the mother-to-be is not. The error of the judge does not seem to have anything to do with an excessive focus on genetics.

    The legal force of genetics here means that, now that the child is born, both genetic parents are legal parents and are entitled to seek custody. That seems entirely appropriate to me. Here, as not in the NY judge’s ruling, both parents are on equal footing.

    • agreed, once the kid is born, both genders should be on equal footing.

      • i expressed that wrong. whatever, agree w jhw’s point.

      • I don’t think genders are on a completely equal footing in the case of newborns because of biological differences. For example, if she’s breast-feeding she needs to be near the newborn to establish routine.

        • nowadays there are perfectly acceptable substitutes for human milk that are appropriate for the majority of babies. Today, few mothers are able to breastfeed exclusively anyway since they will be going to school or working. I do not think that a mothers wish to breastfeed should be given priority over other factors for full custody.
          On the other hand snatching a neonate away from a new mom, even a bottle feeding mom, just rubs me the wrong way. there is something inhumane about it.

          • There are acceptable substitutes, but research suggests better outcomes with breast milk.

            • true, but the fact that one parent provides somewhat healthier food is not terribly significant to me.
              actually by the time the infant was 3 months, its more problematic if the infant is exclusively breastfeeding thant during earlier stage in which the routine is being established, because at that stage he may not accept a bottle.

    • I suppose what I meant was that the stress on genetics can lead to a result that gives the man and the woman equal rights even during the pregnancy. I think during the pregnancy they are not on equal footing–because she is pregnant and he is not.

  9. Well look either one of them can move where ever they want so long as they pay their child support. So if the guy up and leaves the town where his kid lives he’s going to pay more support because he won’t have the child half the time. You can’t very well have joint custody of an infant if you live in another state. Someone is going to have to have primary physical custody.

    A guy would have the option of paying less money if he lived closer and was more hands on raising the child on a daily basis. She eliminated that option for him.

  10. Like I can’t just up and leave the bay area with my daughter to go live with my Mother in Mendocino because that would undermine her relationship and weekly visits with her father. Having a child connects you to the other parent married or not. I’m married still but that’s because I choose to complicate matters. If I were not I still just could not go move away with her without reaching some kind of agreement with him.

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