When Bode Miller, the Olympic ski star known for daring Alpine racing, met Sara McKenna in San Diego last year through the high-end matchmaker Kelleher International, they were both professing interest in finding a marriage partner, she said.
The relationship did not last long, but she became pregnant. Now the skier and McKenna, 27, a former Marine and firefighter who is attending Columbia University, are locked in a cross-country custody fight that has become tabloid fodder and a closely watched legal battle over the rights of pregnant women to travel and make choices.
In December, when she was seven months’ pregnant and already sparring with Miller about their future relations, McKenna moved to New York to start school. Miller accused her of fleeing to find a sympathetic court, and a New York judge agreed, castigating McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Miller, 36, and set off alarm bells among advocates for women’s rights.
On Nov. 14, a five-judge appeals court in New York said 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.”
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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 9 months old, back to McKenna.
A tug of war between courts in two states remains possible, because the San Diego judge has not ceded jurisdiction.
It is an unusual celebrity custody case, not centered on extravagant financial demands or questions about paternity. Both sides say they hope for co-parenting, but relations have been poisoned by what McKenna says is a steamroller campaign by Miller to push her to the margins and by what Miller calls the mother’s uncooperative behavior based on a quest for revenge.
They cannot even agree on what to call their son. When he was born in New York on Feb. 23, McKenna gave the newborn Miller’s given names, registering him as Samuel Bode Miller-McKenna. She calls him Sam. Bode won permission from the California court to add Nathaniel as a middle name, in honor of his recently deceased brother, and he calls the boy Nate.
Women’s-rights advocates called the early decisions, questioning McKenna’s behavior, a threat to the autonomy of pregnant women and applauded the appeals court reversal.
“Especially with current political pressures to recognize separate legal rights for fetuses, there will be increasing calls on the courts to fault a pregnant woman for moving, to restrain women from living their lives because they’re pregnant,” said Sarah Burns, head of the Reproductive Justice Clinic at the New York University School of Law.
Miller is training for the Sochi Winter Olympics. In October 2012, he married Morgan Beck, a beach-volleyball star and model he started dating around the time McKenna became pregnant.
McKenna joined the Marines at 17 and four years later became a firefighter at Camp Pendleton, the Marine base near San Diego.
She met Bode Miller in April 2012 through Kelleher International, with both professing interest in finding a marriage partner, McKenna said.
They dated for about a month and a half, she said, sometimes cooking dinner on the yacht where Miller lived at the time.
McKenna said she asked Miller to be an involved father, but he initially pushed her away. She released a text from June in which Miller, explaining why he would not accompany her to an ultrasound, said, “U made this choice against my wish.”
Miller declined to be interviewed, but in court documents he said that while he wanted to do his duty, McKenna set out to humiliate him with online announcements that she was pregnant by him and comments to the news media and later kept her whereabouts secret.
McKenna said that when she realized she could not continue with her firefighting job, she began considering colleges. On Oct. 9, 2012, she texted to Miller: “Just a heads up, I met with an advisor from Columbia today and we will probably be moving there in the fall.”
By last fall, Miller was taking action to secure a major role in his future son’s life, filing a declaration of his paternity and interest in custody in San Diego. Once the boy was born, McKenna filed in New York for temporary custody. But on May 30, a Family Court referee refused, rebuking 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 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 Miller. On Sept. 4, as McKenna described it, Miller and his wife came to her apartment, “took the baby out of my arms, dropped it in a car seat and drove away.”
McKenna has seen him for a total of 10 days since the handover, said her lawyer, Naved Amed, and is scheduled to have him over Thanksgiving weekend.
This month, in its scathing reversal of the May decision, the appeals panel in New York rejected the suggestion that “the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship.”
McKenna and Miller have been ordered to appear in New York Family Court on Monday, where a judge will revisit the question of temporary custody and visiting rights.