A question that will likely arise more often now than in the past is this: Can a child custody Order be made before a child Is born? Or, stated another way: Can a pregnant woman kidnap a fetus?
People have been debating the question of when life begins for a long, long time, whether their focus is political, scientific, religious or legal. Thus, why should we be surprised to learn that appellate courts in fourteen states have considered whether the UCCJEA provides a legal basis for trial courts to make orders concerning the custody of a child before that child has been born. The majority (twelve) of these courts have held that custody jurisdiction cannot exist before a child has been born.  In the two minority states, the decisions are flawed by a mere assumption that surely pre-birth jurisdiction must exist. A more careful analysis using proper rules of statutory construction could have prevented these anomalies.
A. IT’S A DRAMA
The most publicly litigated case (publicized in the press, on the evening news, and of course on blogs—both legal and personal), is that involving Sara McKenna and Olympic skier Bode Miller.
Ms. McKenna resided in San Diego and worked as a firefighter at the Camp Pendleton federal military facility. She met Bode Miller and not long thereafter became pregnant by him in May 2012. She decided to leave her firefighting job for fear its inherent dangers might jeopardize her pregnancy or interfere with her subsequent parenting obligations. Mr. Miller was not at all enthusiastic about her pregnancy, wanted her to terminate it, and subsequently entered another relationship with a woman. He married that woman in October 2012.
Knowing that she would need to be able to provide for the child as a single mother, Ms. McKenna began to focus on completing her college education on the Post 9/11 G.I. Bill. She attended a college fair and talked with university representatives. She considered colleges in California, Connecticut, and New York, but focused on Columbia University as early as October 9th. Columbia seemed to Ms. McKenna to be not only an outstanding college, but also she was attracted to Columbia’s record of support and benefits for veterans under the Yellow Ribbon Program.
Ms. McKenna believed that a college degree would increase her employability and earnings potential. Because she had served four years in the Marines and was honorably discharged, she was eligible for substantial aid under the G.I. Bill. Columbia appealed to her because of the University's unique and beneficial support network for veterans, older students, and parents; its academic prestige; and the more favorable financial aid made available to veterans by Columbia and New York State.
Ms. McKenna applied for admission to Columbia. In November 2012, she sublet her house in California because she could not sell it without a loss. She made a temporary move to Northern California while awaiting confirmation that her hopes of attending Columbia University would be realized. On December 16, 2012, Ms. McKenna received a letter from the admissions department of Columbia, approving her admission for the spring semester. She then relocated to the State of New York.
Ms. McKenna was approximately seven months pregnant when she moved to New York in December 2012. Mr. Miller’s communications with her convinced her that he was not interested in any relationship with her or with the putative child who would be born of their fling. They had had no relationship after Ms. McKenna became pregnant around May 23-25, 2012.
The child was born in the State of New York on February 23, 2013 and Ms. McKenna filed an action to establish parentage in the New York Family Court for child custody on February 25, 2013. At the time of commencement of that action, the 2-day-old child, had lived with his mother in New York since birth. New York is, of course, one of the 49 out of 50 states that have adopted UCCJEA. (New York Domestic Relations law Section 76)
As with all States that have adopted the UCCJEA, a New York court "has jurisdiction to make an initial child custody determination only if this state is the home state of the child on the date of the commencement of the proceeding." The definition in New York’s DL Code is the same or similar to that of all states: "home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” N.Y. Dom. Rel. Law § 75a(7) [Emphasis added]
Mr. Miller, still a resident of California, had filed a pre-birth Petition to Establish Parental Relationship in California on November 15th, 2012. Mr. Miller was served with the New York action, but first began substantial legal activity in California. His attorney requested a default judgment asking the California court to take jurisdiction and an ex parte default order issued in California on March 6, 2013. Immediately thereafter, Mr. Miller's attorney alleged that Ms. McKenna had engaged in behavior "tantamount" to “parental kidnapping” by relocating to New York while pregnant. Mr. Miller, through counsel, filed papers in the California Court seeking a custody determination by that court on March 13, 2013.
Once Ms. McKenna’s New York attorney was made aware of the California action, papers were filed seeking reversal of the default judgment on grounds that New York was the child's home state. Mr. Miller opposed this motion. Finally, the New York Family Court Referee was called upon the resolve this jurisdictional matter.
Mr. Miller’s counsel then, by limited appearance filed on April 4, 2013, sought a dismissal of Ms. McKenna’s custody action filed in New York. His primary argument was that his California paternity case was first-filed — while Ms. McKenna was still pregnant — and that California proceeding was still pending. His lawyers argued that Ms. McKenna had "absconded" with the fetus in utero specifically to avoid the California proceeding and that her relocation, childbirth, and subsequent custody filing in New York were impermissible forum shopping. His claim was that Section 207 of the UCCJEA should be involved and that the New York Court should decline jurisdiction to avoid rewarding Ms. McKenna for her "absconding with the fetus" and "forum shopping" on grounds of "unjustifiable conduct" and inconvenient forum.
Ms. McKenna’s response was simple: New York was clearly the child's "home state," and that under the UCCJEA, this was dispositive of subject matter jurisdiction. Her lawyer also argued that any inquiry into a pregnant woman's reasons for moving were both irrelevant and prohibited as infringing on constitutionally protected activity. At the close of the hearing in May 2013, the Referee ordered counsel for the parties to provide briefs to support their arguments in time for the next scheduled hearing on May 30th.
On May 30, 2013, Referee Fiordaliza Rodriguez granted Mr. Miller’s motion and dismissed Sara's custody petition. The basis for the decision? Although the Court recognized that New York is in fact the child's "home state," the Court declined jurisdiction finding (a) that Ms. McKenna had effectively "absconded" with the fetus in utero, (b) she had moved to New York State in furtherance of an unspecified "forum shopping" scheme," and (c) that the first-filed California proceeding was the more "convenient forum."
The court said that Ms. McKenna’s relocation was similar to cases in which "parents, or their surrogates, act in a reprehensible manner, such as [by] removing, secreting, retaining, or restraining the child." More specifically, the referee wrote: "[w]hile Petitioner did not 'abduct' the child, her appropriation of the child [sic] while in utero was irresponsible, reprehensible...." Id. The referee found that Ms. McKenna’s stated reasons for relocating lacked merit and found that her move to New York while she was pregnant was "unjustifiable conduct” implicating section 207 of the NY Domestic Relations Code and permitting the trial court to decline jurisdiction. In addition, Ms. McKenna was reprimanded for supposedly manufacturing evidence.
Furthermore, because the Referee determined Ms. McKenna’s relocation to be "unjustifiable conduct," the Court also made her subject to the fee-shifting penalty for invoking the New York Family Court's jurisdiction.
In her decision and order, the Referee did not do any type of analysis / statutory construction of the UCCJEA, nor did she even acknowledge the constitutional concerns that Ms. McKenna’s lawyer raised. Her lawyers claimed that Ms. McKenna’s constitutional right to travel and her constitutional privacy rights would be violated if the trial court ruled that she could not move to another state while she was pregnant and then seek custody in the child’s state of birth. Ms. McKenna timely appealed the May 30th Order. In the meantime, the California court proceeded and Ms. McKenna saw the child for about ten to fourteen days over the course of the next year.
B. THE APPEAL
Ms. McKenna’s case on appeal drew the attention of legal scholars and amici such as NOW, Carr Center for Reproductive Justice, National Advocates for Pregnant Women, the Women’s Law Project, A Better Balance, who briefed the constitutional issues. However, as is true in any appellate court, when the court reversed the trial court order on other grounds, the appeals court then dodged the constitutional question. Thus the issue whether a woman’s constitutional right to travel was violated was not decided and will wait another day (if ever) to be decided. Nevertheless, aside from the constitutional privacy issues and the constitutional right to travel found in the U.S. Constitution, a UCCJEA analysis—a statutory analysis—will work any day.
The McKenna appellate court held that “[i]n cases such as this, where the undisputed home state is the state of the court in question, the subject matter jurisdiction inquiry is at an end.” This is because the UCCJEA prioritizes home state jurisdiction by design, making a child's home state the presumptive forum for initial custody determinations. [Citations omitted] You may read the McKenna appellate decision here: Download McKenna Appellate Decision
Once a court determines that it is the child's home state, the court may decline jurisdiction only upon a finding of any of three conditions: (1) a simultaneous proceeding was properly filed first in a foreign jurisdiction in substantial conformity with the UCCJEA; (2) forum inconvenience; or (3) unjustifiable conduct by the party seeking to gain home state jurisdiction. Denial of subject matter jurisdiction for any other reason is improper and in violation of the UCCJEA.
The Referee's decision had adhered to this analytical framework in name only. While embracing the relevant concepts (home state, simultaneous proceedings having jurisdiction substantially conforming under the UCCJEA, forum non conveniens, and unjustifiable conduct), the Referee failed to apply them in this case.
Contrast the McKenna case with a 2007 Wisconsin case, v. Hatch Hatch, 302 Wis.2d 215, 733 N.W.2d 648 (Wis.App., 2007). With this decision, Wisconsin fell within the 12-state majority in deciding that the UCCJEA doesn’t apply to an unborn child.
The facts are fairly typical. After their marriage in Idaho, Tanya and Michael lived there for seven months before their separation. Tanya moved to Wisconsin, and shortly thereafter, Michael filed for divorce in Idaho. Tanya gave birth in Wisconsin about four months after she had left Idaho. Twelve days later she filed a custody case in Wisconsin.
Meanwhile, in Idaho, Michael filed a motion for custody, the Idaho court granted him interim custody, and that court ordered Tanya to return with the child. Michael then moved to dismiss Tanya’s Wisconsin custody case. The Wisconsin trial court held that the Idaho court had jurisdiction to decide the child’s custody and dismissed its custody case. Tanya appealed that dismissal. The Wisconsin Court of Appeals reversed, holding that Wisconsin had custody jurisdiction as the child’s “home state,” and that Idaho did not. The rationale for the court’s holding was that the “home state” of a child under the age of 6 months is the state where she has “lived from birth,” and that the child had lived only in Wisconsin from the date of her birth until the date on which Tanya filed her custody petition. Thus, under Wis. Stat. §822.21(1)(a), only Wisconsin could decide the child’s custody. Michael’s argument in the appellate court that his first-filed Idaho case had jurisdictional priority under the “simultaneous proceedings” provisions of the UCCJEA was rejected by the court. The only time a “first-to-file” argument will prevail is when the first-filed case was actually a custody case. 
Further, the Wisconsin appellate court declined to apply Section 207 of the UCCJEA to the case and to characterize Tanya’s move to Wisconsin as “unjustifiable conduct” mandating a decline of custody jurisdiction to Idaho. The court held that “crossing state lines while pregnant, without more, is not ‘unjustifiable conduct....’ “ You may read the Wisconsin appellate decision here: Download In_re_Custody_of_Kalbes _Hatch
To answer the question whether the UCCJEA applies to an unborn child, a court need do nothing more than to apply rules of statutory construction. When interpreting a statute, the court attempts to ascertain and give effect to the intent of the Legislature. A court may not speculate about the probable intent of the legislature beyond the language expressed in the statute. In determining legislative intent, the courts look first into the specific language of the statute. Statutory language is ambiguous when it is equally susceptible to more than one meaning, not when reasonable minds can disagree regarding its meaning. Clear and unambiguous language in given its plain and ordinary meaning. Clear and unambiguous language should be enforced as written.
The word “child” clearly does not mean “fetus.” Had the legislature intended for the UCCJEA to apply to unborn children or fetuses, the legislature would clearly have so stated. The word “child” is given a specific meaning in the definitional section of the UCCJEA: “ ‘Child’ means an individual who is younger than 18 years of age.” MCL 722.1102(b). Thus, it is not possible to define “child” as a fetus.
But it made for good fodder for the press for many months.
 The 12 majority states include Alabama, Arizona, Arkansas, Connecticut, Colorado, Florida Texas, New York, Ohio, Oklahoma, Washington [case reported but non-published] and Wisconsin. The Arizona and Colorado cases were decided under the UCCJA, but the relevant language of that old act was transplanted into the UCCJEA without material change, so those older cases should still be good law. The two minority states are Indiana and Kentucky. [Thanks to David Blumberg for this footnote.]
 See, e.g. Fisher v Belcher, 269 Mich App 247, 713 NW2d 6 (2005) where although mother filed in Michigan first, she filed a child support case. The Michigan Court of Appeal held that the father’s action should go forward because it was the first-filed child custody action. See also MCL 722.1206 Fisher v Belcher may be read here. Download Fisher v Belcher