Pregnant Mother Has Right To Relocate Over Objection Of Putative Father

November 19, 2013
By Clifford Petroske

The constitutional right to travel freely, like all rights, exists in a balance with other rights.  For instance, courts have long held that a custodial parent is not free to relocate to a distant locale without court permission, since the move may be contrary to the children’s best interests.  But what if a woman is pregnant with a couple’s only child – is she free to relocate to a different state against the wishes of the putative father?

In a recent decision, a unanimous panel of the Appellate Division of the New York Supreme Court answered resoundingly “yes,” holding that “putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.” The mother, Sara McKenna, is the former girlfriend of Olympic skier Samuel Bode Miller, the putative father, who had filed a paternity petition in California before the child was born.  Two days after the child was born in February, the mother filed a custody petition in New York, where she had moved during her pregnancy to attend Columbia University. Finding that her conduct in moving from California to New York was “unjustifiable” and “reprehensible” the New York Family Court attorney referee had dismissed the mother’s case on jurisdictional grounds, even though New York clearly had “home state” jurisdiction to determine the case.  Once California got the case, it granted the father physical custody, separating the mother from her infant son.

On appeal, the Appellate Division reversed the Family Court referee, reinstating the mother’s petition.  Significantly, the appeals court held that the California court had no jurisdiction to determine custody because the father’s petition was not a custody petition, which can only be filed after the birth of a child.  It also disagreed with the referee’s opinion of the mother’s conduct, finding there was nothing wrong with moving.