A Kentucky judge awarded custody of a fetus to the mother, opening a legal can of worms

LOUISVILLE, Ky. — A Jefferson Family Court judge’s decision to award custody of a fetus to its mother has set off alarms among abortion-rights advocates and some family lawyers, who say the decision was unprecedented and possibly unlawful. 

Judge Lauren Adams Ogden’s ruling giving temporary custody of the unborn child in January to Skylar Weisenberger had nothing to do with abortion. 

The judge, appointed, then elected in 2018, was trying to provide extra protection to Weisenberger, 19, who said she’d been threatened by the father, 21-year-old Jordan Boyd. The court also granted a domestic violence order restraining Boyd. 

While it is routine to grant custody of a child to its mother in conjunction with a domestic violence order, family law practitioners and professors who teach that subject say they have never heard of granting custody of a fetus. 

They argue the Uniform Child-Custody Jurisdiction and Enforcement Act, which is the law in 49 states, including Kentucky, says visitation and custody can only be granted for children after they are born. 

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Advocates for reproductive freedom say the ruling, if upheld, could have implications for abortion rights and women’s liberty. 

If a mother can be granted legal custody of an unborn child, says Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, so can the purported father. And he could then bar her from terminating a pregnancy. 

Retired University of Kentucky family law professor Louise Graham said: “Suppose the father lives in Kentucky and the mother moves to Indiana. If he has custody of the fetus, could he require her to return to Kentucky? I don't see how he could have custody of the unborn child without having custody of her person as well.”  

Graham added, “As a policy matter, I think it would be unwise to permit custody actions over an unborn child in most instances.” 

Meg Stern, support fund director of the nonprofit Kentucky Health Justice Network, also said awarding custody of a fetus creates a "dangerous precedent" because it could remove the pregnant woman's right to make her own medical decision if custody were given to a parent, spouse or boyfriend.

Addia Wuchner, executive director of the Kentucky Right to Life Association, who said she believes that a fetus is a human being, applauded the decision.

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Purported father files for appeal

Boyd appealed the custody order and the domestic violence order, saying he never harmed Weisenberger, and the case is now pending at the Kentucky Court of Appeals. 

Boyd’s lawyer, Abigail Green, declined to comment because the case is still being litigated. 

Weisenberger’s attorney, Dorislee Gilbert, would only say an “abused woman who is pregnant is at an increased danger of violence from her abuser. In preparing to have a child, parents make all sorts of prebirth plans for their child's future, and a mother who expects to give birth to her abuser's child should be allowed to do so without threat and danger from her abuser.” 

The child was conceived in September and expected in June, according to court records.  

Asking Judge Odgen to vacate her ruling, Green and co-counsel Miles Skeens IV argued in court papers that awarding custody of an unborn child violates Roe vs. Wade, the 1973 decision in which the Supreme Court held that women have a fundamental right to privacy, including the right to control their bodies during pregnancy. 

They also cited the subsequent decision Planned Parenthood vs. Casey, in which the court in 1992 “cautioned against state action during the prebirth time frame.”  

“The unborn child is located in petitioner’s body,” the lawyers said. “The government does not have the authority to issue orders regarding the unborn child.”

Judge cites violent texts in decision

But in a response, Gilbert, a former prosecutor who heads the Louisville-based Mary Byron Project, whose mission is to protect battered women, said the citations to Roe vs. Wade “borders on the offensive.”  

She said Weisenberger sought the court’s help to protect herself and unborn child after Boyd engaged in a “pattern of controlling, manipulative and violent behavior.” 

Gilbert also noted that Kentucky law recognizes the “humanity and personhood of unborn children in many instances,” including, for example, in wrongful death claims. 

Granting the domestic violence order, Ogden cited pages of texts and social media messages in which she said Boyd threatened Weisenberger and showed other “red flags.” 

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In one text, he said: “I f------ dare you to keep me out of my child’s life. … I don’t care about no court or police. … Try some s--- like that and I promise you’re going to regret that.” 

In another, he said if she named the baby without his participation or let another man near it, “I know where you live. I will ruin yo’ life just like you are ruining mine. … I will flip yo’ car upside down.”’ 

In a third message, he wrote, ”You can literally drop dead the day after the pregnancy and I won’t even visit yo mf grave.” 

But in another text, he apologized. “I’m really sorry Skylar. I don’t wanna hurt you. I don’t wanna do anything” to keep “you … and our baby” from being together. 

Still, Weisenberger said in court pleadings she was scared for herself and her unborn child.

“I can’t sleep at night,” she said. “At first I wanted him in our child’s life but now … I can’t trust him and that scares me. … I just want him to leave me alone.”

Courts seldom intrude on custody of unborn

Carliss Chatman, an assistant professor at Washington and Lee University School of Law, said the judge probably issued the custody order to provide the mother “an extra layer of protection” — perhaps so she could avoid having to seek custody immediately after giving birth.

But Chatman said the order was “premature and unnecessary.” 

In the only vaguely similar case in Kentucky, the state Court of Appeals in 1999 allowed a father to seek custody of an unborn child whose mother had moved to Ohio, but custody was not determined until after the birth.

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In New Jersey, when a pregnant woman was beaten up by her former boyfriend and four accomplices — and sought a protective order for herself and the unborn baby — a court in 2013 ruled a fetus was not a person under state law.

But it said nothing precluded a judge from ordering the unborn child, upon birth, be automatically included as an "additional person" protected from the defendant. 

Paltrow, director of the New York-based advocacy group for pregnant women, said that despite good intentions, “efforts to protect women by treating her eggs, embryos and fetuses as persons almost end up being used to hurt the pregnant woman herself.” 

She cited the controversial custody case involving former Olympic gold medalist skier Bode Miller of California. 

After he impregnated ex-Marine Sara McKenna in 2012, and she moved to New York to enroll at Columbia University when she was seven months pregnant, he sued her for custody. 

Treating the fetus as a person, a judge castigated McKenna for absconding to New York with her own unborn child in utero in what the judge described as an underhanded attempt at forum shopping — seeking a favorable court for a ruling. 

That allowed a California court to grant custody of the baby, a boy, to Miller, and it also set off alarm bells among advocates for women’s rights, The New York Times reported.  

Eventually, however, a New York appeals court said McKenna’s basic rights had been violated, and the boy was returned to his mother. 

“Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty,” the court said. 

Follow Andrew Wolfson on Twitter: @adwolfson.