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.