December 2, 2013 by Robert Franklin, Esq.
The Bode Miller/Sara McKenna case has stirred the waters of family law and the commentariat associated with it. Here’s one of many articles about the case (Boston.com, 11/29/13). It should come as no surprise that the feminist enclave of those who opine on child custody matters imperfectly grasps the issues involved.
For those of you who haven’t kept abreast of the case, the basic facts are these: Olympic skier Bode Miller had a very brief fling with McKenna, first in his native California and later in Florida. McKenna became pregnant, apparently because neither of the two used any form of contraception. She announced the fact to Miller via text message to which he responded to the effect that he didn’t want a child with her and, since the decision to carry it to term was hers, the responsibility for raising it would be hers as well. He then married another woman and the two are living in California.
At some point, Miller had a change of heart about the type of involvement he wanted with his child, who is now a small citizen of the world named Sam (McKenna’s name for him) or Nate (Miller’s chosen name). But McKenna decided to move to New York where she had educational opportunities at Columbia University, or at least that’s McKenna’s explanation for why she moved.
A New York judge viewed her motivations very differently. Judge Fiordaliza Rodriguez called McKenna’s cross-country move “reprehensible,” and made it clear that she thought Mom had moved more to increase her child support take from Miller than for any other reason. (Child support in New York lasts until the child turns 21; in California the age is 18.) The judge ordered the child placed in Miller’s temporary custody in California. That was back in May.
Just a few days ago, a New York appellate court reversed the trial court’s decision and the baby has once more been handed over to his mother, at least until December 6th, when there’ll be another court hearing.
Now, as outrageous as much of the commentary on this case has been, we shouldn’t lose sight of the fact that it raises some very important and, under current law intractable, issues. Those issues need to be resolved in the right way or fathers’ rights to their children and children’s rights to their fathers stand to take yet another beating.
The reason is that Americans have a constitutional right to travel. In order to prevent a person from moving from place to place of his/her own free will, the state has to make a very convincing showing that doing so promotes an important state interest. Obviously, that case is made when a person commits a crime that’s punishable by incarceration. The case can be made in times of martial law or other emergency.
My own personal bias in the matter leans away from government power being used to prevent We the People from travelling freely. The potential abuses of such a power are too obvious and too unnerving to ignore. So, given a choice, I’m going to err on the side of maintaining restrictions on the power of government to tell us where we can and can’t go. (And yes, I’m aware of the fact that states, working with the federal government, deny to fathers who owe child support the right to travel via refusing them passports.)
As many commentators have pointed out in the Miller/McKenna case, no law and no case has ever ruled that pregnancy is one of those situations in which a state may prohibit a woman from going where she wants when she wants. So, the appellate court in New York may well be right in reversing the lower court.
Or, it may not be. After all, nothing in the court’s ruling meant that McKenna can’t remain in New York. She can stay there, move back to California or decamp to Timbuktu for all anyone cares. The issue is not where she is, but what she did – move away from the child’s father, an action that effectively denies him parental rights and his child his rights to his dad. That is, the judge believed that McKenna’s action indicated “reprehensible” judgment. It was reprehensible because it was either aimed at - or simply resulted in – the deprivation of Miller’s rights and those of his son.
To her credit, the judge understood that it’s not the inalienable right of a mother to decide whether her child has a relationship with his father or not. Unlike all too many judges, Judge Rodriguez grasped what McKenna’s actions meant and that they were detrimental to the interests of Miller and his son. Faced with one parent who seems to believe her son doesn’t need his father and his father has no right to his son, and another parent who’s not only fit and loving but married into the bargain, the judge decided to transfer custody to Miller.
What the appellate court apparently failed to understand is that McKenna’s right to travel hasn’t been impaired in the slightest. The court didn’t restrict that at all. The only thing Judge Rodriguez did was notice (as she was required by law to do) who appeared to be the better parent and rule accordingly.
Needless to say, the feminist commentariat is up in arms. Consider, for example, our old friend Emily Bazelon writing here (Slate, 11/25/13). To her, a child in utero is the possession of the mother and, since the mother has the right to travel, she and the child can go anywhere they want for any reason she can think of. And of course, if a father loses his child in the process and a child its father, well, you can’t make an omelet without… To Bazelon and her sisters among the perennially enraged, a father’s rights and a child’s interests begin at birth, not before. Therefore, anything a mother does while pregnant is none of anyone’s business and if that just happens to radically prejudice both the child and the father, that’s a matter that no one can question. (My guess is they believe Roe v. Wade indicates something of the sort. It doesn’t.)
That point of view of course is entirely consistent with the common mindset that is happy to place the rights of children and fathers entirely within the control of mothers. So when Bazelon complains that the Miller case is simply one of taking fathers’ rights “too far,” she never lets on about what, in her opinion, would be far enough. No, to her, a judge who criticizes a pregnant mother for taking her child 3,000 miles from his father and thereby substantially limits his ability to see or be a father to his child is “dangerous.”
You bet she is. The New York judge did what, for feminists and the anti-dad crowd, is anathema; she recognized that a mother’s unilateral action in taking a child beyond the range of his father’s ability to care for it is a mother whose ability to co-parent with that father is suspect. More judges should do likewise.
What shouldn’t happen is for the Miller/McKenna case to set the standard for all future ones in which a pregnant woman moves away from the father. It wasn’t the case in Miller/McKenna, but it could conceivably be that the mother’s action is truly necessary and, above all, not unilateral. In Miller/McKenna, the judge found that her move was, at least in part, a bid to keep the child from his father and to garner more child support than would have been awarded in California. As such, she considered McKenna to be a less ideal parent than Miller.
But in future cases, the same may not be true. Clearly women, just because they’re pregnant can’t be restricted from legitimate travel. Just as clearly, fathers shouldn’t lose their children via the expedient of women’s right to travel. Nor should children lose their fathers in the same way.
So the rule of law should require pregnant women to go to court and ask permission to move away. In short, they should be treated the same as every other woman with a child and a custody order. Those, and the laws of the various states, generally require custodial parents to get the permission of the family court to move away and therefore prejudice the rights of the non-custodial parent.
Pregnant women should bear the same responsibility. Of course feminists cry that the fetus is nothing more than that and therefore can’t imbue the father with any rights whatsoever. But, as we’ve seen many times, unborn children routinely produce legal responsibilities on the part of fathers, so why not rights? After all, if an unmarried father wants to assert his parental rights and stop the adoption of his child, in many states he has to prove his parental behavior before the child is born. So he has to have offered to marry the mother, provided her with money, attended medical appointments, bought clothing, furniture, toys, etc., for the child and the like. If he doesn’t, he loses his parental rights. And if he has parental obligations prior to the birth of his child, he should be able to establish rights as well.
So let’s do what we do with women who have children as it is. Let’s require them to get the approval of a court, following a hearing at which fathers get an opportunity to make their case why the mother should remain close at hand. The same rules should apply as to all custodial parents.
Feminists like to pretend that this has something to do with abortion rights, but that’s far from the truth. Again, neither Roe nor any of its progeny has anything to do with empowering mothers to deny parental rights to fathers or a child the right to a father. If a woman wants to abort her fetus, she’s free to do so. But until she does, she must be presumed in the law to be carrying the child to term. And that means she can’t take any action – except abortion - that would prejudice the rights of either father or child.
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