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Does California Family Law Allow One to Gain Custody Over an Unborn Child?
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Does California Family Law Allow One to Gain Custody Over an Unborn Child?

On Behalf of | Apr 8, 2021 | Child Custody, Child Support, Divorce

Child custody rights in California are never cut and dry, and matters become increasingly complicated if the child has yet to be born.

What rights does a father have to an unborn child, particularly where custody is involved? This is a good and common question, and yet there is no easy answer. The best a father or mother in this situation can do is speak to a qualified attorney. The laws governing the unborn are different than those that determine custody after the child has been born.

To help clarify the issue of the rights of father of an unborn child, as well as the rights of pregnant mothers, we have compiled a compilation of explanations and scenarios regarding an unborn child’s rights and those of his or her parents. After reading, you should have a better comprehension of where you stand with regards to your unborn child’s rights in the state of California.

Under California law, mothers don’t have to do anything to get all the rights to the child she wants. The law is different for fathers before the birth.

Need to protect your father’s rights? Call Griffith, Young & Lass today at 858-951-1526 to set up a legal consultation.

What Are the Rights of a Father of an Unborn Child?

Fathers of unborn children have limited rights. To have any decision-making authority for an unborn child, you must first establish paternity. Before birth, this can only be done through the Department of Child Support Services. Only then you will have rights as the father of the unborn child.

When a father is unmarried to his baby’s mother, as the presumed father of the child, he may wish to add his input to decisions made during the pregnancy, such as healthcare decisions, medical testing, and even adoption. These decisions can have a significant impact on the child after the birth, after all, but the father does not automatically get to take part in these discussions. If you do not establish paternity before the child is born, then you must do so after the child is born and protect your fathers’ rights that way.

California judges will never base a decision on a child’s well being based on gender. Whereas traditionally mothers retained the rights to the child’s well-being, such as making all those important decisions, today’s courts take a child-based view. In other words, family law judges base their decisions on what is best for the child. When it comes to fathers’ rights for unborn children, a judge will always do what is in the child’s best interests.

Therefore, when a father knows or suspects that he is the parent of an unborn child, he has legal rights, as long as he takes the proper steps.

How to Get a Father’s Legal Rights to an Unborn Child

  • Declaration of Paternity – The father can sign a document known as the Declaration of Paternity, which voluntarily states that he is the father. The document would be filed with the Department of Child Support Services.
  • Paternity Action – By taking a Paternity Action in family court, the father will also begin child support proceedings and receive rights toward the unborn child.
  • Establishing Parentage – The father can also go to the Child Support Agency directly to establish parentage.

All three of these actions can help a man establish himself as the father of an unborn child legally.

If you are in this situation and the mother is disputing your fatherhood, there is one more step you can take.

Genetic Test for Paternity

A genetic test can be ordered by the court to prove that you are the father of the unborn child. It should be noted that most Judges won’t order a DNA test until the child is about six months old.

When Parents are Married and Another Man is the Presumed Father

In cases where another man is potentially the father of a married couple’s unborn child, the soon-to-be-ex-spouse would be the presumed father until the biological father requests a genetic test.

Establishing paternity legally by any of the above means will give you access to your unborn child.

Is a Pre-Birth Custody Agreement Possible?

California judges have the discretion of issuing pre-birth orders when parents are not living together as the child’s birth approaches. These orders spell out what will occur during the pregnancy and after the birth while keeping to the child’s best interests.

California’s Uniform Parentage Act (UPA) paved the way for pre-birth orders, which help to preserve a serene environment for the child’s arrival. These orders are also important for keeping the couple from quarreling, which often forces hospital staff to play referee.

When the orders are issued, parents will be required to allocate authority for medical decisions beginning at birth. The orders also ensure that both parents have a chance to hold the baby and bond with the child. Further, the orders include a plan for the baby’s care upon release from the hospital.

How to Get Full Custody of an Unborn Child

In cases where the father has established paternity and the mother is deemed by the father to be unfit, whether because of psychological, substance abuse, or other issues that may put the child at risk, the father can petition the court for full custody once the child is born.

Pre-birth orders may also be issued to ensure the father is fully enmeshed in the baby’s care before the birth occurs.

Can You Get Child Support Before the Baby Is Born?

Can a pregnant woman get child support? Can you file for child support while pregnant?

This is a common question asked of many California family attorneys. The short answer is yes. However, there are some rules the woman must follow in order to start collecting support payments from the presumed father.

The most common step to gaining financial assistance during and after the child’s birth is to speak to the Child Support Agency. The agency can help to determine paternity if the father is yet unknown.

If the father is known and he follows the proper channels in establishing parental responsibility, the Child Support Agency will begin collecting child support from the father on the mother’s behalf. This can occur during the pregnancy if the order is issued by a family court Judge.

Father’s Financial responsibility During Pregnancy

Aside from important decisions regarding the child’s care, an unborn baby is going to cost both mother and father in medical and other fees. Pregnant women should undergo medical screening regularly throughout her pregnancy to monitor the health of the mother and fetus. By contributing to these costs, a father can demonstrate his dedication toward caring for the child, and that can look favorably upon the man in cases of visitation and custody after the child is born.

If the Child Support Agency begins collecting child support during the pregnancy, these funds can sometimes be used to pay for medical care during the pregnancy.

Should a Father be Obligated to Contribute to Prenatal Expenses?

A father is responsible for the well-being of his child. By participating in parental discussions, even during the pregnancy, he can demonstrate his commitment toward fulfilling his role of a loving dad. The same goes for paying for prenatal expenses. It will be difficult to convince a Judge later on that you are a doting father if you fail to care for the child during pregnancy when you suspect or know the baby is yours.

Fathers’ Rights and Responsibilities before the Birth of the Child During Divorce

If the pregnant mother and the presumed father are getting a divorce during the pregnancy, the Judge may issue pre-birth orders to ensure the couple cooperates in the child’s care until birth. These orders may or may not include child support payments to pay for the baby’s care.

What are a Father’s Visitation Rights After Birth?

As long as there is no history of violence or substance abuse in question, as a father, you have rights to time spent with the child, as long as the court recognizes you as the father. It is best to petition the court for visitation after you have established fatherhood. You can put your best foot forward by seeking the services of a qualified family attorney in helping you issue your petition. The Judge, when making a determination of a father’s rights, will always do what’s best for the children, but will also take the father’s actions into account.

You can ensure that you can get adequate custody of and visitation with your children by following the right steps. First, petition the court for paternity by signing a Declaration of Paternity, taking a Paternity Action, or by speaking directly with the Child Support Agency. You can also take a DNA test if the Judge will order one.

You can also contribute to the decisions regarding the child, if the mother will let you, and contribute to any and all pregnancy expenses. You are more likely to get the custody arrangement and visitation schedule you want by devising your own plan ahead of time. You may not always get the plan you want, but by being open to the Judge’s orders and by taking a proactive step toward your child’s care, even while the mother is pregnant, you are sure to get adequate time with your child after your child is born.

Schedule a Free Consultation with a Compassionate Family Lawyer

If you are the presumed father of an unborn baby, you may wonder about your rights. Whether you are living separately from the mother or you are married and going through a divorce, you have rights and can fight for them.

The family attorneys at Griffith, Young, and Lass can help you understand your rights as a father under California law. If you are trying to prove paternity or dispute paternity, a family attorney can give you the advice you require to make the process easier to manage while pursuing the outcome you desire.

The first step is for one of our lawyers to review the details of your case. Call now to schedule a free consultation. With compassionate and aggressive legal action, we can help you enforce your rights as the father of an unborn child as part of a settlement or in California family court.