What Custody Rights Does a Father of an Unborn Child Have During Pregnancy?

Theoretically, California family law treats mothers and fathers equally, with no preference for gender when making determinations of child custody. This, however, is simply not the case when an unborn baby is at issue.

Under California law, mothers don’t have to do anything to establish their rights to their child. The law is different for fathers.

Fathers must first establish their parental rights (i.e. father’s rights), before they are entitled to make any decisions or have any say in the life of their child, or unborn child.

However, if you are concerned about the health and safety of your unborn child for reasons of drug or alcohol abuse or domestic violence issues, it is important to contact Child Protective Services or the police for help. Although you have limited rights while your child is unborn, you may be successful in protecting your unborn child once the state investigates your allegations.

Can a Father of an Unborn Child Get Custody Rights Before the Baby is Born?

Custody laws in California do not apply to unborn children. An unborn baby obviously cannot be anywhere other than the mother’s womb, so the mother technically has “custody” of the unborn child by default of biology.

There are steps a father, or someone who believes he may be the father, can take to protect his parental and custodial rights prior to birth of a baby, however. Examples of these steps are as follows:

  1. Sign a Voluntary Declaration of Paternity and submit it to the Department of Child Support Services through the Parentage Opportunity Program (POP).
  2. File a Petition to Establish Parental Relationship in the family court.
  3. Request genetic testing to prove that you are the father of the child. This can be done via court order or agreement of the parties.

Child custody orders can, of course, be issued as soon as the child is born, enabling a father to have parenting time with the baby from the get-go.

Can the Family Court Prevent a Pregnant Woman From Moving Out of State at the Request of the Father of the Unborn Child?

As the father of an unborn child, your rights are limited. An unborn baby obviously cannot be anywhere other than the mother’s womb, so child custody and parenting time don’t apply until the baby is born.

That being said, fathers of unborn babies do have some rights prior to the birth. So can a father prevent the pregnant mother of his child from moving out of California?

In short, no.

In the United States, adults have a constitutional right to travel freely (i.e. move away) and the family court cannot impede that right unless another countervailing state interest is at stake – in this case, presumably the best interests of a child.  However, because a court cannot adjudicate custody of an unborn baby, and a court cannot discriminate against woman because of pregnancy, no law prohibits a pregnant woman from moving out of the state where the father resides to another state.

It is not up to fathers to dictate where pregnant women live. Everyone has the fundamental right to make the decision of where to reside for him – or herself.

Obviously, a pregnant woman cannot help but dictate the geographic itinerary of the unborn child that, by biological necessity, goes where she goes. That doesn’t mean the mother wins the custody battle in the end, but it does mean she cannot be penalized for moving to another state before the baby is born.

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the state with jurisdiction over a child under 6 months old is the state in which the child was born.

Thus, a pregnant woman who does not wish to litigate child custody in the state where the father lives appears to have the unbridled right to move anywhere else and have child custody determined in the jurisdiction where she lives at the time of the child’s birth.

California’s family law procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about family law procedures, contact our accomplished and dedicated family law, divorce, and child custody lawyers by calling (844) 4-TALKOV (825568) or contact us online for a free consultation with our experienced family law attorney, Colleen Sparks, who can guide you through the court process in a prompt and clear manner.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Silicon Valley, and surrounding areas in California. 

Our knowledgeable attorneys can also help if you have questions about any of the following: