DO HAVE CUSTODY OF MY NEWBORN BY DEFAULT UNTIL THE COURT MAKES A DECISION?

QUESTION: I am 6 months pregnant and am going to be filing for a divorce in California. Since I don't believe custody will be decided until after the birth, will I have custody of my newborn by default until a decision is made in court? Should I have trouble getting full custody while the baby is a breast-feeding newborn if the father tries to contest it?

MY RESPONSE:

You can always tell who the mother is - the person who gave birth to the child. Unmarried mothers of newborns have de facto custody of their children. There is a presumption that a child born during the marriage or conceived during a marriage is a child of the married father unless he is sterile or impotent.

When you say: "I don't believe custody will be decided until after birth", I don't know if you mean that the alleged father may not be the biological father, or if you mean that you and your husband won't be able to come to agreement as to custody, or if you mean the Court will not determine custody until after birth.

Judges don't award child custody before the birth of the child.

If another man may be the biological father of your child, the alleged father will need to file a Paternity case to seek custodial/visitation rights. If he signs a Declaration of Paternity, or if you name him as the father on the birth certificate, he may have greater parental rights than he might otherwise have.

If your husband is the biological father of your child, he will at least in theory have custody rights equal to yours, although many judicial officers realize that mothers have traditionally provided early care for their newborns.

Judges have ordered mothers to use a breast pump and provide that milk in bottles to the fathers to feed the infants.

It depends on the particular judicial officer, the requests of the parties, and the quality of the testimony of both parties and the evidence offered by both parties as to what custodial/visitation rights the judicial officer will award.


This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |