Custody Battle Raises Questions About the Rights of Women
Damon Winter/The New York Times
Sara McKenna, a former Marine, was briefly involved with Bode Miller and then, pregnant with his child, moved to New York to study at Columbia. He then won temporary custody of the baby.
By ERIK ECKHOLM
Published: November 23, 2013
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.
Jean-Christophe Bott/European Pressphoto Agency
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.
She met Mr. Miller in April 2012 through Kelleher International, with each expressing interest in finding a spouse, Ms. McKenna said in an interview last week at her university-owned apartment.
They dated for about a month and a half, she said, sometimes cooking dinner on the yacht where Mr. Miller lived at the time.
Ms. McKenna said she asked Mr. Miller to be an involved father, but he initially pushed her away. She released a text message from June in which Mr. Miller, explaining why he would not accompany her to an ultrasound, said, “U made this choice against my wish.”
Mr. Miller declined to be interviewed, but in court documents he charged that while he wanted to do his duty, Ms. McKenna set out to humiliate him with online announcements that she was pregnant by him and comments to the news media, and later kept her whereabouts secret.
Ms. McKenna said that when she realized that she could not continue with her stressful firefighting job, she began considering colleges. On Oct. 9, 2012, she texted to Mr. Miller: “Just a heads up, I met with an advisor from Columbia today and we will probably be moving there in the fall.”
Ms. McKenna says she wanted a new start and that Columbia offered the best support for a new parent, admitting her through a program the university describes as for “talented women and men who follow an untraditional path to higher education.”
By last fall, Mr. Miller was taking action to secure a major role in his future son’s life, filing a declaration of his paternity and interest in custody in San Diego.
Once the boy was born, Ms. McKenna filed in New York for temporary custody. But on May 30, a Family Court referee refused, rebuking Ms. McKenna for “unjustifiable conduct” and “forum shopping” and making the unusual decision to leave the case in California even though the baby was born and lived in New York.
While Ms. McKenna “did not ‘abduct’ the child,” the court said, “her appropriation of the child while in utero was irresponsible, reprehensible.”
The Family Court in San Diego proceeded to grant primary custody to Mr. Miller. On Sept. 4, as Ms. McKenna described it, choking up, Mr. Miller and his wife came to her apartment, “took the baby out of my arms, dropped it in a car seat and drove away.”
Ms. McKenna has seen him for a total of 10 days since the handover, said her lawyer, Naved Amed, and is scheduled to have him over Thanksgiving weekend.
This month, in its scathing reversal of the May decision, the appeals panel in New York rejected the suggestion that “the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship.”
Ms. McKenna and Mr. Miller have been ordered to appear in New York Family Court on Monday, where Judge Adetokunbo O. Fasanya will revisit the question of temporary custody and visiting rights.
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