Ok this may be just me but I'm bothered by This article on slate. It seems that Bazelton is somehow attempting to cast Miller as a villain, "father's rights have gone too far!" Hear me out on this one. I find it frustrating when someone tries to argue that a person is doing something wrong, without properly understand what they're talking about.

Bazelton seems to think that the issue is that the courts didn't want McKenna to move :

A list of advocacy groups for women and reproductive rights have banded together on McKenna's behalf, as they should. "I've never heard of a restriction on a pregnant woman telling her that she can't move to another state," University of Florida law professor Lee-Ford Tritt told me over the phone. "I'm outraged by this idea that they even ask about her motive. Columbia is a phenomenal school, but I don't care if she just liked the bagels and pizza in New York better."

Agreed: It is not up to fathers, or courts, to dictate where pregnant women live. Everyone has the fundamental right to make this decision for him- or herself.


That doesn't appear to be the case at all. The problem is that the case started as a "paternity case" in California, which means that Miller filed first and attempted to gain legal recognition as the father of the child—before the child was born. This is a legitimate action under California Law.

And in November 2012, he filed a "Petition to Establish Parental Relationship" in California, checking the box on the form to say he was the father of "a child who is not yet born" and another box to begin a custody proceeding for a "child [who] resides or is found in this county."

Miller filed an action ion November 2012. The paternity claim didn't mean McKenna couldn't live in New York, rather, that the child would be outside of the state of California.

McKenna would have been served with Miller's pleadings shortly after he filed the action. She would have known that he filed that action. She then decided to file her own action in New York City, even though she knew an action had already been filed in California.

Two days after her baby was born in February 2013, she went to New York Family Court to petition for custody—the legal basis for keeping the baby with her and making decisions about raising him.


Why do this if you AREN'T simply forum shopping? A case has already been started. You aren't supposed to go around filing identical suits in different states once someone has already started a case in one state.
Under California law you can absolutely file a petition to establish paternity prior to a child's birth. Therefore, Bazelton's reading of the "home state" question is moot. The "judge/referee" didn't overlook anything.

The first step of the Family Court's job—deciding whether it had jurisdiction, or the authority to hear the case—should have been easy. New York law, which is based on a uniform code for all the states, says that New York courts have jurisdiction when New York is the child's "home state." This was obviously the case for McKenna and Miller's baby (she calls the baby Sam; he calls him Nate), who was born in New York. But the New York family judge who heard the case (called a referee for some reason) seemed to have it in for McKenna when he sent the case back to the California courts, accusing her of moving to New York as an underhanded attempt at "forum shopping"—picking one court over another. The judge/referee also overlooked the fact that "child" in state custody law does not mean unborn child, as in fetus, which is what the "child" was when McKenna moved east.


Miller filed a petition first. There were no restrictions on where McKenna could live or move: The only restriction was where she could LITIGATE the case. I don't see this as an MRA gone awry, rather, simply someone following the letter of the law.

Also note: The judge would be called a referee in a jurisdiction dispute because he or she would not be the assigned judge for the case when the identical case is pending in another state.

Share This Story

Get our newsletter