Olympian Baby Debate Misses the Mark

There has been much discussion recently about the procreation between Bode Miller, the Olympic ski star and Sara A. McKenna.  They had a short relationship in California and conceived a child.  But while pregnant McKenna relocated from California to New York and gave birth in the Empire State.  The legal debate then quickly became - which state - New York or California - should be the forum where the battle for custody over the child would be waged.

Much attention has been given to the first judicial opinion rendered on the topic. The New York Court Referee ruled that the mother's "appropriation of the child while in utero was irresponsible" and "reprehensible" and warranted a declination of jurisdiction in favor of the California court.  Inflammatory rhetoric aside - this simply meant that the New York Court said to the California Court - “you take the case”.

McKenna appealed and won on this preliminary issue - at least for now.  The New York Appellant Court stated that since the child was born in New York, that State became the ‘home state’ of the child and thus, that would be the appropriate place to decide custody.

Rants of tabloid fodder ensued about whether this was a ‘great victory for women’s rights’, in that a woman should be able to decide where she wants to live while she is pregnant and then give birth.  Father’s rights groups did not sit on the sidelines asking, ‘why is the father relegated to second class parent without having any say in where his child is raised’?

Both sides of this debate miss the point entirely.  This is not about the freedoms of either parent.  That is a completely self-centered conversation.  The discussion should center on what is best for the child.  And every bit of research clearly shows that what is best for the child is to have as functional a relationship as possible with both parents - mother and father alike.  So of course each parent has a right to live anywhere on the planet that they like - but how will it be ensured that the child has a healthy, active and consistent relationship with both parents.

It is not appropriate to exploit this child for any special interest group.  This case should not be the poster child for either mother’s rights or father’s rights. It is just the latest in the infinite line of cases that start and end with the rights of the child.  And that is squarely where the only conversation should be - how are we going to best take care of this child and see that he has a great relationship with both of his parents, not just one parent over the other.

The Law Offices of Steven Gildin

- Compassion for the Client, Aggression for the Adversary