Analysis Law and Policy

New York Court Affirms Moving Out of State While Pregnant Is Not ‘Absconding With a Child’

Jessica Mason Pieklo

A decision last week illustrates that the fight for fetal "personhood" rights is happening on many fronts.

Anti-choice activists routinely pit the rights of pregnant people against the rights of their developing fetus as a means to justify policing their behavior and holding them criminally accountable for the outcomes of their pregnancies. But a recent case out of New York shows those efforts are not limited to abortion restrictions and prosecutions for feticide, but have even shown up in custody disputes.

The plaintiff in this most recent case lives in New York, but she used to live in San Diego, where she was working as a firefighter at Camp Pendleton. After becoming pregnant, she decided to quit firefighting and instead go to college, figuring as a single mother the benefits of a college degree outweigh the risks inherent in firefighting. After looking at colleges in California, Connecticut, and New York she decided to attend Columbia University and, at seven months pregnant, moved to New York to start school.

The plaintiff had no real relationship with the father of her child. He had no involvement in her decision to move, and around this time had married another woman. After the birth of his son, he declined invitations to come to New York and meet him. Assuming the father wanted no part in her son’s life, the mother began a proceeding in New York courts to seek sole custody of the child. But once the father got notice of the custody action, he began his own proceeding in California. Confusingly, California uses the same form to begin a paternity proceeding as to begin a custody dispute; in this case, the father told the court he was seeking both an order of paternity for a child not yet born and custody. To make matters worse, the father was able to quickly get an order from the California court granting paternity before the mother’s attorneys had a chance to respond. With that order in hand, the father pushed for custody in California, arguing the decision to move while pregnant was “tantamount” to parental kidnapping.

With dueling custody actions in both New York and California, the courts had to decide where the proceeding would take place. The attorney for the father appeared in New York and argued the New York case should be dismissed, with the California court making the custody determination. Typically, the determination of where a custody case is to be heard is driven by the “home state” of the child. The mother argued that New York was the “home state” since her child had been born in the state and lived with her since birth. But the father argued the California court, which had already established paternity before the attorneys for the mother had notice of the proceedings, should ultimately determine custody.

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The New York Family Court agreed and, in May, granted his motion to dismiss the New York custody case. The reasoning of the family court referee shows a disturbing disregard for the rights, let alone the basic autonomy, of the mother. According to the court referee, the mother, by virtue of relocating from California to New York while pregnant, committed an “appropriation of the child [sic] while in uteri [that] was irresponsible, reprehensible.”

“The referee’s decision had far-reaching implications for pregnant women, effectively stripping them of fundamental constitutional rights,” said Sarah Burns, professor of Clinical Law at NYU Law and director of the Reproductive Justice Clinic, in a statement released after a New York appellate court overturned that decision. Burns and her clinical students, joined by the National Advocates for Pregnant Women (NAPW), the New York Civil Liberties Union, and nine other organizations, filed a brief in the case, detailing just how the determination that moving while pregnant was an “appropriation of a child” would have far-reaching constitutional implications. If left standing, the referee’s interpretation of the custody statute would place unconstitutional constraints on a person’s basic life decisions, such as where she lives, works, and attends school while pregnant. Lynn Paltrow, executive director of NAPW, explained the constitutional significance of the decision in a statement as well. “This decision affirms that women who become pregnant may not be penalized for exercising their rights to travel and to seek an education,” she said.

Last week’s decision is significant for a number of reasons. To begin with, it reaffirmed that, as a general rule, courts cannot hear custody matters that are filed prior to birth, since a developing fetus should not be considered a child for custody determinations. More specifically, in this case, the court went further to underscore that the mother’s relocation should not have been relevant to New York‘s jurisdiction over the custody dispute in the first place. To make that move relevant, the court reasoned, men claiming to be fathers could limit the movement of pregnant women, and “[p]utative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.” Finally, the decision is a strong affirmation that a person does not give up their rights once they become pregnant, and that reproductive autonomy extends well beyond the initial decision to terminate or continue a pregnancy.

Correction: A version of this article referred to the group National Advocates for Pregnant Women as the National Association of Pregnant Women. We regret the error.

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