Child Custody and the Winter Olympics

With the Winter Olympics just getting under way the story of downhill skier, Bode Miller, and his custody battle with the mother of his son is likely to be in the news again. The story is that a woman Bode Miller was dating became pregnant in early 2012. He learned of her pregnancy only after they were no longer dating. When she became pregnant the woman and Bode were both living in California. Prior to giving birth the woman moved to New York City and enrolled in college at Columbia University. Bode filed for custody rights to the unborn child in California and, after giving birth, the mother filed for custody in New York. The Court in New York chastised the mother for moving in an attempt to deprive Bode of his parental rights and sent the case to California to be decided. The California Court temporarily awarded custody to Bode. Later the New York Court of Appeals overturned the decision and the case was back in New York. Bode and the mother eventually came to an agreement to share custody.

The case is interesting with regard to custody practice in Pennsylvania in speculating as to how the case may have been decided here. Pennsylvania, like both New York and California, has agreed upon the procedures for determining custody disputes that cross state lines. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) states that the “home state” of the child is where custody litigation should take place. “Home State” is defined by where the child has resided in the previous six months and his/her connection to the state. In the case of a newborn baby the place of birth and the home of the mother is the only way to select a home state.

The question that arises is whether a Court can restrict a pregnant woman from moving wherever she would like. The United States Constitution allows all citizens the liberty to live where they choose. The New York Court of Appeals stated that “putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.” It is likely that the Courts of Pennsylvania would say the same thing. As with custody relocation cases that begin in Pennsylvania the Courts can restrict a parent from moving with the child but cannot tell the parent that he or she cannot relocate without the child. The question becomes whether the Courts have the same ability to restrict a pregnant woman from removing the fetus from the jurisdiction. The current state of the law is that the unborn fetus is not a child for purposes of this rule and it seems unlikely that any Court in Pennsylvania would be able to restrict a woman from moving because she is pregnant. Until the case actually arises in Pennsylvania we can only speculate.

For more information on family mediation or to speak with a divorce lawyer in York, PA, please contact Kris Smull at (800) 615-0115.

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