Monday, 25 November 2013

Custody Battle Raises Questions About the Rights of Women


 When Bode Miller, the Olympic ski star known for daring Alpine racing, met Sara A. McKenna in San Diego last year through the high-end matchmaker Kelleher International, they were both professing interest in finding a marriage partner, she recalls.

Mr. Miller with his wife Morgan and his son.
The relationship did not last long — but she did become pregnant. And now the skier, 36, and Ms. McKenna, 27, a former Marine and firefighter who is attending Columbia University with G.I. Bill support, are locked in a cross-country custody fight that has become not only tabloid fodder but also a closely watched legal battle over the rights of pregnant women to travel and make life choices.
In December, when she was seven months pregnant and already sparring with Mr. Miller about their future relations, Ms. McKenna moved to New York to start school. Mr. Miller accused her of fleeing to find a sympathetic court, and a New York judge agreed, castigating Ms. McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Mr. Miller and also set off alarm bells among advocates for women’s rights.
But on Nov. 14, a five-judge appeals court in New York said Ms. McKenna’s basic rights had been violated, adding, “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”
The appeals court also ruled that jurisdiction belonged in New York.
On Monday, a New York City Family Court will start proceedings that could switch custody of the boy, now nine months old, back to Ms. McKenna.
But a tug of war between courts in two states remains possible, because the San Diego judge has not yet ceded jurisdiction.
It is an unusual celebrity custody case, not centered on extravagant financial demands or questions about paternity. Both sides say they hope for “co-parenting,” but relations have been poisoned by what Ms. McKenna says is a steamroller campaign by Mr. Miller to push her to the margins and by what Mr. Miller calls the mother’s uncooperative behavior based on a quest for revenge.
They cannot even agree on what to call the boy. When he was born in New York on Feb. 23, Ms. McKenna pointedly gave the newborn Mr. Miller’s given names, registering him as Samuel Bode Miller-McKenna. She calls him Sam. Mr. Miller won permission from the California court to add Nathaniel as a middle name, in honor of his recently deceased brother, and he calls the boy Nate.
Women’s rights advocates called the early decisions, questioning Ms. McKenna’s behavior, a threat to the autonomy of pregnant women and applauded the appeals court reversal.
“Especially with current political pressures to recognize separate legal rights for fetuses, there will be increasing calls on the courts to fault a pregnant woman for moving, to restrain women from living their lives because they’re pregnant,” said Sarah E. Burns, the head of the Reproductive Justice Clinic at the New York University law school.
Ms. Burns was an author, along with several women’s rights groups, of a “friend of the court” brief in Ms. McKenna’s successful New York appeal, which was argued on a pro bono basis by the firm Amed Marzano & Sediva.
Mr. Miller is currently training for the Sochi Winter Olympics. In October 2012, he married Morgan Beck, a beach volleyball star and model he started dating around the time Ms. McKenna became pregnant. They often travel together to tournaments and promotional events, posting pictures of Nate on social media.
The marriage provided new grist for conflict. Ms. McKenna has accused Ms. Miller, who announced that she had a miscarriage in January, of seeking to replace her as a mother. Ms. Miller, in a blog post on Nov. 16 that was soon taken down, contrasted their “loving and balanced family” with Ms. McKenna’s heavy reliance on child care.
Ms. McKenna joined the Marines at 17 and four years later became a firefighter at Camp Pendleton, the Marine base near San Diego.

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