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Child CustodyCan An Expectant New York Mother Be Prevented From Relocating?

November 19, 2013

25348-NEW YORK CHILd Custody attorneyThe child relocation cases just keep coming.

Recently, a mother was allowed to relocate so she could accept a job, which permitted her to support her family. In another case, a mother lost custody when the court found that a mother’s relocation, purportedly to accept a job, was really an attempt to thwart the father’s parenting time.

The children in both of those cases had been born and the fathers had a relationship, good bad or indifferent, with the children.

In a novel twist, what happens when the mother seeks to relocate even before the child is born? Can a pregnant mother be prevented from moving?


Olympic skier Bode Miller filed to establish paternity of his then unborn child in California after the expectant mother moved to New York to study at Columbia University. Two days after the child was born in New York, the mother filed a custody petition in New York.

The New York Appellate Court ruled that because the infant had been born and continuously lived in New York, New York was the child’s home state. Therefore, New York had jurisdiction to rule on custody of the child. That the father had filed for paternity in California before the child’s birth was of no consequence; “…courts cannot exercise subject matter jurisdiction over custody proceedings filed prior to the birth of a child.”

The Court then declared that “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”

The Court emphasized:

Further, we reject the Referee’s apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship.

An expectant mother may relocate, without input from the putative father before birth. However, fixing jurisdiction to hear the custody case on the basis of the new born’s home state (in this case the two days from the child’s birth to the date of filing) is problematic.    Would California have had jurisdiction if, for instance, the birth took place in California even if mother was permanently living in New York?   If that is the case, then the new born’s place of birth could become a strategic jurisdiction-shopping decision.

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