New York Courts Reverse Course in Custody Case
December 9, 2013
NEW YORK – Today in Manhattan Family Court, Sara McKenna and Bode Miller agreed to delay a permanent custody hearing and asked the court to approve a temporary joint custody agreement for their 10-month old son in a case that women’s rights advocates across the country have been closely watching.
“We are relieved by today’s decision to grant joint custody and end the dangerous direction the court had taken,” said Sonia Ossorio, President of the National Organization for Women – New York City. “This case had the potential of creating a very dangerous precedent that could affect pregnant women throughout the country as well as open another avenue to create fetal personhood. We will continue to monitor this case and any other like it.”
While 7 months pregnant, McKenna moved from California to New York in December 2012 to attend Columbia University. Days after her son was born, McKenna went to the New York Family Court to petition for custody. But a Manhattan Family Court Attorney Referee, Fiordaliza Rodriguez, said that McKenna’s “appropriation of the child while in utero was irresponsible, reprehensible” and sent the case to California, where the child’s father, Bode Miller, was granted temporary custody.
The referee cited the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which includes a provision allowing courts to refuse jurisdiction because of a parent’s “misconduct” in improperly “taking” a “child” from another state. The issue of highest concern for legal scholars and women’s rights advocates was the referee’s decision to apply this child abduction rule to a pregnant woman, implying that the pregnant mother kidnapped her own fetus. This finding was without precedent in New York, where a father cannot even apply for a finding of paternity until the child is born.
“It was unprecedented to have a judge basically accuse a woman of running off with her fetus,” added Ossorio. “The constitution grants adults, including pregnant ones, their right to liberty. This never was just about a custody case, it’s about pregnant women’s rights.”
On November 14, 2013, a panel of five judges in the New York appeals court overruled the Court Attorney Referee declaring that New York State indeed had jurisdiction, and sent the case to a Manhattan Family Court judge to make further orders. On Monday, November 25, 2013, Judge Adetokunbo O. Fasanya reinstated McKenna’s temporary custody of the child, and then referred the case back to Court Attorney Referee Rodriguez for today’s hearing in which the parents requested temporary joint custody.
The National Organization for Women – NYC and several women’s rights groups filed a “friend of the court” brief for McKenna’s New York appeal.
Contact: Brielle Nalence, 212-627-9895, firstname.lastname@example.org