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.