Custody Battle Raises Questions About the Rights of Women - or divorce is unfair to someone

NYTimes    The relationship did not last long — but she did become pregnant. And now the skier, 36, and Ms. McKenna, 27, a former Marine and firefighter who is attending Columbia University with G.I. Bill support, are locked in a cross-country custody fight that has become not only tabloid fodder but also a closely watched legal battle over the rights of pregnant women to travel and make life choices. 

In December, when she was seven months pregnant and already sparring with Mr. Miller about their future relations, Ms. McKenna moved to New York to start school. Mr. Miller accused her of fleeing to find a sympathetic court, and a New York judge agreed, castigating Ms. McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Mr. Miller and also set off alarm bells among advocates for women’s rights. 

But on Nov. 14, a five-judge appeals court in New York said Ms. McKenna’s basic rights had been violated, adding, “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.” 

The appeals court also ruled that jurisdiction belonged in New York. 

On Monday, a New York City Family Court will start proceedings that could switch custody of the boy, now nine months old, back to Ms. McKenna.[...]

Once the boy was born, Ms. McKenna filed in New York for temporary custody. But on May 30, a Family Court referee refused, rebuking Ms. McKenna for “unjustifiable conduct” and “forum shopping” and making the unusual decision to leave the case in California even though the baby was born and lived in New York. 

While Ms. McKenna “did not ‘abduct’ the child,” the court said, “her appropriation of the child while in utero was irresponsible, reprehensible.” 

The Family Court in San Diego proceeded to grant primary custody to Mr. Miller. On Sept. 4, as Ms. McKenna described it, choking up, Mr. Miller and his wife came to her apartment, “took the baby out of my arms, dropped it in a car seat and drove away.”