Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, November 26, 2013

Custody In Utero and the Reproductive Rights of Women

More of the backstory reported by the NY Times in Custody Battle Raises Questions About the Rights of Women.  The father, Olympian skier Bode Miller, filed for custody of the child before the child was born.  Which led to claims that the pregnant mother improperly relocated out of state against that custody jurisdiction when she moved to go to college.   

The NY appellate court reversed. 

We therefore, disagree with the Referee's finding that the mother's "appropriation of the child while in utero was irresponsible" and "reprehensible" and warranted a declination of jurisdiction in favor of the California court. Rather, the mother's conduct at issue here amounts to nothing more than her decision to relocate to New York during her pregnancy. Further, we reject the Referee's apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship. Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.

Interestingly, there is a text early in the pregnancy from the father disavowing any interest in the child -- very similar to a text the father sent in the Baby Veronica case that the US Supreme Court honed in on as evidence of the unsuitability of an unmarried, biological father.

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Aside from the absurd sexism of this case, it shows that judges are sometimes completely incompetent in reading and interpreting what is a uniform and comprehensible statute. There was never any question that NY had jurisdiction and California did not. This lower court judge's (referee's) error caused real injury to this family and this child.

Posted by: Susan Apel | Nov 30, 2013 5:44:26 AM

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