New York Recognizes Mother’s Constitutionally Protected Liberty to Relocate With Child In Utero

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New York Recognizes Mother’s Constitutionally Protected Liberty to Relocate With Child In Utero

21 Mar 2016

In a case involving the professional downhill skier Bode Miller, a New York appellate court has recognized a pregnant mother’s constitutionally protected liberty to travel with a child in utero free of interference from the putative father. Matter of Sara McK. v Samuel Bode M., 111 A.D.3d 474 (1st Dep’t 2013). The mother had a brief romantic relationship with Miller in California and, while pregnant, relocated to New York without consulting the father. The Family Court was highly critical of the mother’s relocation to New York and ruled that the mother engaged in “unjustifiable conduct” within the meaning of New York’s Uniform Child Custody Jurisdiction Enforcement Act by relocating while pregnant without the father’s permission. That ruling served to defeat New York jurisdiction under the Act in favor of California, and the court dismissed the mother’s custody petition on that ground. The Appellate Division, First Department reversed, determining that removal of a child from a state does not violate the Act unless the action is contrary to an existing judicial custody order. The child had not been born prior to the mother’s relocation to New York and, accordingly, no custody order was extant. (Under the Act, courts cannot exercise subject matter jurisdiction over custody proceedings filed prior to the actual birth of a child.) The Appellate Division rejected any implication that, under the circumstances, the mother was required to consult with the father prior to relocation, stating that “[p]utative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty” to travel unimpeded prior to the entry of a judicial custody order.

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