Olympic Skier’s Cross-Country Custody Battle Has Potential to Create Nationwide Precedent

The nine-month-old infant named Nate was brought into a New York courtroom, cradled in the armsRed pushpin marking New York City on a map, selective focus of his father. After a hearing, the same child left the courtroom in the arms of his mother, who calls him Sam. This is only one of many twists and turns in the bi-coastal custody battle between the child’s father, famed skier Bode Miller, and the child’s mother, Sara McKenna. Apart from the celebrity factor, this case has been catapulted into the media spotlight based upon its unique fact pattern, sharply-worded court rulings, and its serious potential to create precedent which may impact parental rights across the country for years to come.

In 2012, Miller, an Olympic and World Champion gold medalist alpine ski racer, met McKenna, who had just completed her military service in the Marine Corps and was a civilian firefighter at Camp Pendleton Marine base in San Diego. Although their relationship was brief, McKenna became pregnant. According to McKenna, Miller told her he did not want to play any role in the child’s life. During McKenna’s pregnancy, Miller also married professional volleyball player Morgan Beck.

McKenna decided to leave her high-risk job as a firefighter and to move across the country to attend Columbia University in New York. McKenna, who was seven months pregnant at the time, stated that she did so because she was able to obtain financial support through the GI Bill and she wanted a degree to enhance her future career potential and better the lives of herself and her then-unborn child.

Miller, however, had already filed an action in California claiming paternity of the child and asking for custody. Upon learning of her move, Miller claimed that McKenna left California for New York not for laudable purposes, but, rather, in an effort to find a more sympathetic court. McKenna started school in January and gave birth to the child in February of this year. She then filed for temporary custody in the child’s home state of New York. In May, a New York judge sided with Miller, chastising McKenna for her cross-country move during her pregnancy, writing: “While [McKenna] did not ‘abduct’ the child, her appropriation of the child while in utero was irresponsible, reprehensible.” Although the child was born in New York, the New York court declined to exercise jurisdiction based upon what it found to be McKenna’s “unjustifiable conduct.” It therefore ceded jurisdiction of the matter to the California courts, which then granted Miller temporary custody of the child.

Not surprisingly, the New York ruling generated a firestorm of commentary, both for and against that decision. Women’s rights groups – focusing on the strong language used in the ruling and its questioning of McKenna’s actions and motivation – sounded an alarm that the ruling was a threat to the autonomy of pregnant women regarding their rights to relocate and make decisions as to their own futures and that of their unborn children. On the other hand, father’s rights groups applauded the decision, opining that it fairly addressed the issue of a father’s access to his child when that child has been removed to a location 3,000 miles away.

Thereafter, McKenna successfully appealed the New York trial court’s decision. On November 14th, a five-judge panel of the New York appeals court determined that McKenna’s basic rights had been violated by the trial court’s ruling, finding that “the mother’s conduct at issue here amounts to nothing more than her decision to relocate to New York during her pregnancy.” The appellate court further rejected any suggestion that, prior to her relocation, McKenna was required to arrange her move with the father “with whom she had only a brief romantic relationship.” The appellate court therefore reversed the decision of the trial court, holding that “[p]utative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”

In light of the appellate ruling, the matter shifted back to New York. Shortly before Thanksgiving, McKenna was granted temporary custody and Miller was required to physically hand the child over to her. However, this story is far from finished. The parties will return to court on December 9th, and family law practitioners and other commentators will continue to closely watch the developments in this matter, which, in its early stages, has already generated one appellate court ruling on the rights of pregnant women and putative fathers.

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