Call Us: (404) 588-3000

When a pregnant woman moves, can she be penalized for absconding with her fetus?


One New York judge said yes.  This New York Times article described the predicament of Sara McKenna who became pregnant by Bode Miller, the Olympic skiier.  Their month and a half long relationship ended around the time she got pregnant.  At seven months pregnant, McKenna decided to move from California to New York to attend Columbia University.

Although the baby was born in New York, Miller sued for custody in California and argued that McKenna should not have been able to move to New York.  A New York judge rejected McKenna’s custody action and found that while she had not abducted her child while pregnant, “her appropriation of the child while in utero was irresponsible, reprehensible.”  Jurisdiction therefore was proper in California where the court awarded custody to Miller.  McKenna has seen her son for just 10 days since she had to turn him over to Miller in September.  Meanwhile, the New York appellate courts reversed the trial judge, finding that “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”  Both parties will appear in New York today to litigate the issue of custody.

I find the trial court’s actions to be appalling.  The father of a child born out of wedlock cannot be deemed to be a legal parent until he has taken court action to legitimate the child once the child is born.  If the father has no parental rights prior to the child’s birth, how can he control where the mother lives?  While I am sympathetic to fathers who want to be good parents and take an active role in their child’s life, they may have to follow the mother if they wish to do so, at least until the child is born and legitimation proceedings can begin.  That is just one of the risks of getting a woman pregnant outside of marriage.  So long as our legal system vests all parental rights for a child born out of wedlock in the mother, there is no basis for a putative father to dictate where the mother can live.