When Mothers Move…Or When Women Are Mothers?

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.

9 responses to “When Mothers Move…Or When Women Are Mothers?

  1. “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. ”

    But, If the mother is willing to give up custody, then I suppose she is free as a bird like daddy. So, legally they’re still equal.

    Socially speaking, though, they are still not. Society will judge a mother who refuses custody much harsher than a father. and by “society” I include her own children.

    Legal Problem if daddy refuses custody. can he still stop her from leaving? I don’t know the answer to that.

    • This is a very important observation—one I want to take some time to talk about soon. There’s the formal law which is entirely equal–the custodial parent, male or female, cannot move without giving up custody. But this equal law is mapped onto an unequal reality. You’ve highlighted one inequality–the judgment that a woman who moves away from her child might face. I mentioned another–it’s much more likely that the custodial parent is the mother than the father. What this means is that the reality of how the law operates is that it mostly works to control the behavior of women.

      Now there are various responses to this. One can say that to get to the ideal, gender neutral place, we must accept this as a price of the old inequalities–that the formal equality is most important. Or one can say that one must take account of how people are actually living their lives. I will put this up in a post later today with a bit more detail, time permitting.

  2. I wanted to comment on this sentence: ” First, I draw a bright and heavy line between pre-birth and post-birth.”

    There was a hint of it in the last post as well, but differently. The father declined to come along to an ultrasound appointment because he did not want to have a child — this happens during the pregnancy when nobody is a legal parent. Does it matter what he says during the pregnancy? Does it show his intent? Some argued that it didn’t matter. I think it is indeed relevant, probably legally as well.

    If his actions during pregnancy matter, then hers do too. That’s not to say they were negative. If the father indicated he didn’t want the pregnancy, both the moving and the studying make all the sense in the world — if the child was going to be dependent on her, the child would be better off if she had better career prospects. Nothing deplorable about that.

    • The fact that she could still choose whether there would even be a baby factors in here too. Ironically considering the title of Julie’s last post, she has total control during this brief window, and it isn’t trivial to him what she decides, her decision controls his life too, and his whole family’s life. During this period, a man should be honest and not indicate he supports having a baby if he doesn’t want to have a baby. A man’s feelings are part of the decision process for most responsible women, but in this case he was a rich famous talented good looking athlete, not some loser, so his sperm is golden, and she got it out of him somehow. A man has a right to express his hope that she will not choose to have his baby, but has to go along with the decision. But he can say he doesn’t want her to have his baby without relinquishing his right to be a parent of his child if she does go ahead and have it. Once the baby is born, that’s a whole new ballgame, and everything that he said before is irrelevant.

      • Perhaps we agree. I too think she does have freedom to travel as she will while pregnant. The title of the post was to suggest that Miller (and the NY judge) sought to limit that freedom by making it come at a very high price.

    • ok- here’s the deal: Women do not lose their constitutionally protected liberties when they become pregnant.

      From a gossip point of view we can all have an opinion on how people act during pregnancy. We can read Radar On-line, talk about it with our friends, ect. From a personal point of view, we can all have an opinion about how a woman should act when pregnant. And that’s fine.

      But…from a legal point of view a judge may not construe moving when pregnant as an element that justified the removal of custody. A woman does not lose constitutional rights when she is pregnant. A ex-boyfriends boyfriend’s interest in the fetus does not overrule her constitutional right of travel. A child does not exist prior to birth, and a ex-boyfriend may not restrict the travel of a ex-girlfriend due to a pregnancy. The court may not penalize her for travel while pregnant after the birth of the child.

      “Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s. The effect of state regulation on a woman’s protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman.”
      “Only one generation has passed since this Court observed that “woman is still regarded as the center of home and family life,” with attendant “special responsibilities” that precluded full and independent legal status under the Constitution. Hoyt v. Florida, 368 U.S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.”

      “Furthermore, it cannot be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant” woman’s bodily integrity than it will on the husband.


    • Don’t know if you all followed my link to the discussion we had on Utah some time back. I argued there that they had no right to demand a man to be engaged in a relationship with the mother during the pregnancy, in order to assert his paternity upon the birth. Among my concerns was that it could encourage stalking-like behavior and controlling of the mother. I meant from the father, but it also opens the door to the legal system to do the same- demanding certain behaviors towards the father during pregnancy in order to assert her maternal rights. yall welcome to visit the link.

    • I have a distinct sense (from reading the comments) that for some people (I’m not necessarily saying you) judgments about exactly why she moved are important in shaping the final conclusion of whether she did right/wrong. Perhaps more people would agree that if she moved because 1) she had an extraordinary opportunity and 2) he had made it clear he had no interest in coparenting the child then her actions are morally defensible.

      But I also think there is a view (which some have expressed) that it really doesn’t matter why she moved. As long as she was pregnant she had the right to go where she chose–just as all individuals do. In this view it is fundamentally different from a standard relocation case because as long as she is pregnant there is no possibility of her leaving the child behind.

      I’m just pointing out the different views here.

  3. To state this yet again:

    It would have been impossible to penalize Bode Miller for travel, for the simple reason that he was not pregnant.

    He could travel to New Zealand for a skiing, and not be concerned that a court would punish him with the removal of his child.

    In contrast, his ex-girlfriend was penalized for travel, for the simple reason that she was pregnant. The court punished her for giving birth in New York. Essentially the court told her that she was not able to leave the state of California until the birth of her child. That is outrageous.

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