Interstate Custody Law at Issue in Bode Miller Custody Debate

Bode Miller has garnered a great deal of negative attention for his custody case. Bloggers have argued that the New York court’s initial ruling was a battle against the rights of pregnant, unmarried women. They have also argued that the media should not paing him as doting father or hero because he’s really a jerk who tried to take his child away from the child’s mother.  However, this case shows that the legal system does work, and a also points out a huge loophole in interstate custody laws.

What Are the Facts of the Case?

In case you have been living under a rock, Olympic skier Bode Miller had a short term relationship with Sara McKenna which resulted in a pregnancy. Miller and McKenna met in April of 2012 and McKenna became pregnant in May of 2012, shortly before the relationship ended. In June, Miller allegedly told McKenna that he did not want to be involved with McKenna or the pregnancy. In October 2012 McKenna told Miller that she had been accepted to Columbia University in New York, and that she would be moving there. That same month, Miller married another woman, Morgan Beck. In November 2012 Miller filed his Petition to Establish Parental Relationship in California, indicating that he was the father of a child who is not yet born. McKenna moved to New York in December and Miller and McKenna’s child was born in New York in February of 2013. Two days after his birth McKenna filed her petition for custody in New York.

What is the Law?

The Uniform Child Custody Jurisdiction and Enforcement Act  (UCCJEA) is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA has since been adopted by all 50 U.S. States, the District of Columbia, Guam, and the U.S. Virgin Islands. The purpose of the UCCJEA is to determine the “home state” of the child for determination of interstate custody disputes, and to prevent forum shopping. Forum shopping occurs when one parent removes a child from one state, without permission of the other parent, to a state with (perceived) more favorable custody laws. Before the UCCJEA (and its predecessor the UCCJA), one parent would move the children, file something in the court of the new state, and the children would pretty much immediately become a resident of the new state. The parent left behind would often lose out because of the cost of retaining counsel in a different state and the difficulties in appearing for hearings.

The section of the UCCJEA that applies to the Bode Miller case is the same in California and New York (as well as here in Illinois. The language is as follows: “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.(Emphasis added).

New York Lower Court was Wrong

It is clear from the wording of the UCCJEA that the child must have been born for the UCCJEA to apply. Thus, California could not be the child’s home state. The child’s home state must be New York, and any custody decision should be made in New York Courts. The lower court judge (called a “referee”), correctly determined that New York was the home state. However, she declined to keep jurisdiction in New York because she found that McKenna’s “appropriation of the child while in utero” was “reprehensible.” Instead, she gave up jurisdiction to California on the basis of inconvenient forum. California then made a ruling granting Miller custody and in September 2013 the child was removed from New York to live with Miller and Beck in California.

Appeal Rectifies the Lower Court Mistake

The New York appeals court has overturned the referee’s ruling that California should have jurisdiction. The referee’s conclusions about why McKenna left California should not have impacted the determination of jurisdiction.  Her conduct may have mattered if there had been an existing custody order, but that was not the case.  So McKenna gets custody, right? Now so fast. California has not concluded that it does not have jurisdiction and transferred the case back to New York, so while the appeal was a small victory, the battle is far from over.

Loophole in the UCCJEA

This case points out a glaring hole in the UCCJEA. Most states do not recognize a fetus as a child. An unmarried pregnant women has no duty to involve the putative father in her relocation decisions, but is this good public policy? That rationale is pretty simple. The court knows who the mother of the fetus is. The court does not know the identity of the father. What if a man erroneously believes himself to be the father? Should he be allowed to prevent a women from relocating, who says that he is not the father, until the baby is born and testing is done? While the law may not seem fair, it is the best solution that we have for right now.  Had McKenna waited until the child was born in California, then moved to New York, California would indeed be the home state of the child, and the California court could have ordered McKenna to return the child to California.  However, since the law does not apply to fetuses, the state where the child is born sets jurisdiction.

Emotional Arguments are Misplaced

  • Miller may have initially told McKenna that he did not want the child but this has  no legal significance. It may mean that he is a jerk, but even jerks have the right to change their minds and be involved in their child’s life.
  • One bad decision is not an all out assault on women and their reproductive decisions.  Almost all states agree that a fetus is not a child born for purposes of the UCCJEA.  The appellate court properly overturned the bad lower court decision.
  • Both McKenna and Miller could have avoided the public eye by sitting down as responsible parents and mapping out a bicoastal visitation schedule.  The law is clear that  both parties have a right to a relationship with their child.

What Does This Mean for an Illinois Custody Case Under the UCCJEA?

I am currently involved in several UCCJEA cases.  What I have found is there are many attorneys who claim to be experts on the UCCJEA but have botched cases for clients that I have taken over and am  fighting to rectify.  If you are currently involved in an interstate custody battle, or believe you might  be headed for one, you should contact me right away.   You can call me now at 708-466-6912 or contact me online. I often meet clients in the evening and on weekends, and all clients get my personal mobile phone number.  Legal problems don’t take weekends off and neither do I.

I represent clients in Chicago, and elsewhere in Illinois including the counties of Cook, Lake, DuPage, Will, Kane, Kendall, and McHenry. I represent clients in uncontested and contested divorces, and other family law matters including paternity, visitation and child support.

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