New York Appeals Court Affirms the Rights of Pregnant Women‏

New York (November 14, 2013): Today, the New York Supreme Court Appellate Division, First Judicial Department, rejected a lower Family Court’s finding that a woman’s decision to move from California to New York while pregnant was so “reprehensible” that it could bar New York courts from hearing her child custody case. National Advocates for Pregnant Women (NAPW), the New York Civil Liberties Union (NYCLU), and the NYU School of Law Reproductive Justice Clinic, who filed an amicus brief with other women’s rights and advocacy organizations, applaud today’s judgment.In May, the lower Family Court found that petitioner Sara McK’s relocation during her pregnancy — to attend Columbia University on the GI Bill — was tantamount to “appropriation of the child while in utero.” On the basis of that characterization, the New York Family Court referee departed from the statute that controls which state is supposed to hear custody proceedings. The statute makes clear that, typically, custody issues should be resolved in the child’s “home state” — in this case, New York, where the child was born.

“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. Burns and her clinical students, joined by NAPW, the NYCLU, and nine other organizations, filed a brief in the case detailing how the referee’s interpretation of the relevant statute placed unconstitutional constraints on a woman’s basic life decisions, such as where she lives, works, and attends school while pregnant.

The Appellate Division’s decision today recognized that the child custody statute must conform to common sense and constitutional law. As a general rule, it made explicit that courts cannot hear custody matters that are filed prior to birth. As applied to Ms. McK’s case, it went further to underscore that her relocation should not have been relevant to New York State’s jurisdiction. Otherwise, the First Department reasoned, putative 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.”

Lynn Paltrow, Executive Director of amici NAPW, was pleased to see the decision address and protect the constitutional rights implicated. “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. Katharine Bodde of amici the NYCLU concurred, adding, “Pregnant women are often denied their rights and dignity. Today’s decision recognizes important constitutional principles including a woman’s right to liberty, equal opportunities under the law, and reproductive freedom.”

Amici: National Advocates for Pregnant Women, New York Civil Liberties Union, MotherWoman, Inc., National Organization for Women in New York City, Choices in Childbirth, Service Women’s Action Network, Planned Parenthood of New York City, NOW-New York State, Law Students for Reproductive Justice, Backline, Every Mother is a Working Mother Network, and the California Chapter of National Organization for Women.

Read Brief of Amicus Curiae NAPW, NYCLU and others together with Family Court Referee’s decision here:

Read decision of the Appellate Division, First Department, here: