I am totally strapped for time this AM but want to put up at least a little bit of a post. (A postette?) I’m continuing the discussion from the last post (which was itself continued from the post before that) and if you’re just joining us, you might want to go back and read those.
First the news: The McKenna Miller custody case was back in court yesterday. According to this account (there are many to choose from), the judge awarded custody to McKenna (the mother) until the next hearing (December 9). No indication of the basis for the award. It’s also the case that after starting in the NY Times the case has become the subject of much wider discussion. As is always the case, some of it is interesting/useful and some (to my mind, anyway) not so much. I liked this essay, which I think makes some broader points.
There are many directions to go with the discussion at this point, but with little time I will just content myself with a couple of observations. I think it might be useful to move away from the actual case because there are so many facts/details we do not know or which we know are disputed. Although I’m interested in the case, I’m also interested in the general principles it illustrates and they may be better examined via hypotheticals (the much beloved creatures of law school.)
So imagine a woman and a man have a brief fling. Nothing that is ever serious. She gets pregnant. He’s not interested. Indeed, in time he moves on and takes up with someone else. While she is still pregnant, she wants to move to a new place for one reason or another. (I can imagine many. She might want to be near supportive family. She might have a good job opportunity. She might want to go to school. She might want to make a fresh start. I’m sure there are many others.) Does she need his permission? (Surely if he doesn’t object, no one else can, right?)
I really hope that the answer to this has to be “no.” She certainly has absolutely no basis to object to any move he might plan. But you can see that there positions are not the same. She is pregnant with the child they are both genetically related to. He is not.
I do think this is all about power. Who has the power to choose where she lives? Does she or does he? And no, it is not that he can actually keep her in place. But he can put a very high price on her move–loss of custody of the child that hasn’t been born yet. That may very well effectively encumber her.
And this is what I find disturbing about the emphasis on genetic linkages as the sine qua non of parentage. If he has an interest it is solely because of the genetic connection. It is not because of any relationship with anyone.
I understand that when she moves it may inconvenience him–he might have to travel, too, if he wants to live in the same town as the child. But I think that’s a better solution than saying that she needs to accede to his request to stay.
The other point I want to make is about relocation cases generally. This is a fine place to consider the difference between formal equality and actual equality. The law reflects formal equality. Take the case of A and B, separated parents of a child. Suppose A has custody.
If A moves B may well have a right to object. A court can consider whether to let A move while keeping custody. After all, if A takes the child to the new place, it will interfere with B’s right to spend time with the child. So A may be left with the choice to either give up custody and move or stay where they are. B is free to move, though, since it won’t interfere in any way.
That’s all nicely gender neutral, right? But what if were the case that A were much more likely to be the mother and B the father–I mean if we actually looked at the breakdown of the cases? This means frequently women can only move if they give up custody (or otherwise gain agreement from the father–perhaps be reducing claims for support?) while men are free to move as they will. It means that the law will, in fact, frequently give men power over women–even though it looks neutral.
This is not an uncommon result when you map nicely neutral law on realities that aren’t neutral. Women are still much more engaged in child care than men, still much more likely to seek and gain custody than men.
Does it matter if father’s use the mother’s attachment to the child as a way of controlling the mother? It does to me. Which means I want to know about how often this actually happens. (If it is rare, then the value of neutral legal principles might be enough to outweigh the harm they do.)
I know this is a little more like a harangue and a little less finely crafted than I usually do. But I’m on the fly and out door.