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Bode Miller v. Sara McKenna: The Child Custody Law Behind Recent Headlines

Gold-medalist skier Bode Miller has been regularly appearing in tabloids since September, when a California court awarded Mr. Miller, a California resident, temporary custody of his infant daughter. What made the case unusual was the fact that the father's application was allowed to proceed at all in California, given that the daughter had been living since birth with her mother in New York. Custody proceedings normally must be held in the state in which the child has lived for the prior six months, or for an infant less than six months old, where that infant has been living since birth. However, in this unusual case, the California court took "jurisdiction" (held that it had authority to decide the case), after a New York court refused to consider a custody petition by the mother, Sara McKenna.

As for factual background, both sides agree that they had a brief relationship in early 2012, resulting in Ms. McKenna's pregnancy. Soon after that pregnancy was known, Mr. Miller became involved with another woman, to whom he is now married. In late 2012, when she was about 7 months pregnant, Ms. McKenna, a veteran, moved to New York, where she had been accepted at Columbia University under the G.I. Bill. But just before she left, Mr. Miller filed for "custody" of the unborn child in California. A few months later, shortly after her child was born, Ms. McKenna filed for custody in New York. Mr. Miller then hired attorneys in New York, aggressively portraying the mother as having fled with his unborn child in order to escape his California "custody" action.

The surprise came on May 30, 2013, when a New York Family Court "referee" (a lower-level judge), Fiordaliza A. Rodriguez, agreed with the father, rebuking the mother for fleeing California's courts during her pregnancy, and declined to exercise New York jurisdiction (refused to allow the custody case to be decided in New York). The referee cited the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA" a set of forum selection rules that has been enacted by all states), which has a provision allowing courts to refuse jurisdiction where that jurisdiction would have been created by a parent's "misconduct" in improperly "taking" the "child" from another state to New York. The referee also found that New York was an "inconvenient forum" given the travel distances for the father, without taking into consideration that the mother, with far less resources than the father, would have to travel the same distance to California.

The case made national headlines after November 14, 2013, when a New York appeals court overruled the Family Court referee and held that New York State indeed had jurisdiction, and remanded the case (sent it back down) to a higher-level Family Court judge to make further orders. (On Monday, November 25, 2013, that judge, Adetokunbo O. Fasanya, reinstated Ms. McKenna's temporary custody of her child, and then referred the case back to the original referee for a hearing on permanent custody.)

The most important rule in the UCCJEA is that custody jurisdiction belongs with the child's "home state," defined as the state in which the child has lived with a parent for at least six consecutive months immediately prior to the custody proceeding (for an infant under six months old, the rule is that the home state is where the infant has lived with a parent since birth). (Temporary absences from the home state, where there is no change of permanent residence, are not treated as time away from the home state.)

The issue of highest concern for legal scholars was the referee's application of the UCCJEA's child abduction rule to a pregnant woman, in essence finding 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. Moreover, as held by the appeals court on November 14, the referee's ruling was contrary to the UCCJEA itself, which defines the child's "home state" as the state of residence from the child's birth, the first point that deciding "custody" between one parent and another would be applicable. Moreover, the appeals court pointed out that the "inconvenient forum" statute, cited by the Family Court referee, expressly requires an analysis of the relative financial circumstances of the parties, and noted that there was no dispute that the father's resources far exceeded the mother's.

Now that mother and child are back together in New York, what is the lesson in all of this for families with cases in the Family Court? In my opinion, the first lesson should be that the Family Court can be a very crazy place indeed, where judges can sometimes either forget "black letter" law or ignore it in a fit, justified or unjustified, against one party or another. A second lesson is that effective attorneys can make a great difference in a custody case, as the father's attorneys did initially, and as the mother's appellate attorneys did later. For both reasons, I always implore parents headed into Family Court to never appear there without counsel, no matter how "routine" their matter may seem. In my observation, having a good attorney explaining the legal issues of the case can be particularly critical for the very first court appearance, when a judge's first impressions about the case and its ultimate direction are established.

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