Custody of an Unborn Child

When a woman is pregnant, and the parties are not married, the father may file a ‘paternity action’ in the court. This would establish himself as the father legally. This may be done before the child is born with the goal of making the initial phase of filing a little faster. However, once the child is born, the remaining issues of child custody/visitation and support would be addressed.

Alternatively,the father can also sign a ‘voluntary declaration of paternity’ which is a governmental form that would be signed voluntarily by both parents. However, a ‘paternity action’ will still need to be filed to establish parental rights.

The problem occurs when the mother does not wish to have the father’s involvement. The mother may also deny the paternity in which case a paternity test can be requested once the child is born. This would be done through the court procedure.

If the mother does not wish to validate paternity before the child is born or allow the father to be present for doctor visits or the birth, she has the right to do so. The Health Insurance Portability and Accountability Act (HIPAA) supports the privacy of health records & treatment for the mother. However, the state would step in if it was determined that there was drug or alcohol usage during the pregnancy. In addition, if the mother wished to put the child up for adoption the legally established father could have recourse and file a complaint with the court.

When you have questions about paternity as well as child custody, visitation & support, call Legal Action Workshop @ 1-800-HELP-444. Our experienced Family Law attorneys can answer your questions and protect your legal rights.

Reader Interactions


  1. Marty Bugg says

    My girlfriend is leaving me. She is pregnant and wants to give our child to her sister to raise once the child is born. I want to keep my child myself and will raise the child as a single father. I don’t want to loose my kid. She is threatening to leave my name off the birth certificate as well. What can I do to prevent my name being left off of it and loosing my child?

    • Brenda Platt-Drucker says

      You can file a ‘paternity action’ in CA (it might be the same in other states if that’s where your ex lives). This would establish you as the father and once the child is born you can address the custody issue. I recommend that you speak with a family law attorney in your area to make sure of your options.
      Hope this helps!
      Thanks for contacting Legal Action Workshop!

  2. Kaiimi says

    I am currently pregnant and I leaving my abusive boyfriend how do I go about getting custody of my unborn child? I do not wish to completely alienate him from his child unless he seems like a unsafe father. I would like to have custody and control of when he can see our son. Supervised visits and such until I know he is not drinking/violent.

    • Brenda Platt-Drucker says

      Do you reside in CA? Typically you do not address custody until the child is born…however you could file a ‘paternity action’ (not a paternity test) which would establish the father legally. This would save you time since once the child is born you would file a ‘request for order’ to get temporary orders for custody/visitation. You can ask for supervised visitation etc. It would be best to get legal advice…if you’re in CA you could call us @ 818-630-5503 and we can help.
      Thank-you for contacting Legal Action Workshop!

  3. Red says

    So my ex is pregnant and saying i can’t get my child until she is no longer a new born what could I do legally to get my child despite her views.

    • Brenda Platt-Drucker says

      What do you mean by ‘get’? Custody, visitation and support are determined once the child is born. In California, the dad can file a ‘paternity action’ (When the father is not married to the mother) and establish himself as the father before the birth. Once the child is born then custody, visitation and support can be addressed. Remember, it’s most important to look at what is in the best interest of the child and, of course, this will change as the child grows older.
      Hope this helps!

  4. Yolanda says

    Live in Va, mother of child has relocated to SC, she is still pregnant and due end of the month. Can paternity, custody and visitation be dealt with in VA or does it have to go to SC. Mother has been there for 5 months going on 6 Months.

    • Brenda Platt-Drucker says

      It would be best to speak with an attorney in VA to determine the jurisdiction. If it’s in SC then you would need an attorney in that state to determine what would be needed to file in your case. States have different rules–however, most states will not address custody, visitation or support until the child is born.
      Hope this helps!

  5. Jasmine Smith says

    I’m pregnant and my now ex-boyfriend is showing erratic behavior and threatening to take my child away from me. We live in MS. How can I start the custodial process now? I want sole custody with supervised visitation and for him to receive medical attention and therapy to possibly get unsupervised visitation by the age of 2. I’ve been looking into putting this into a legal parenting plan but I honestly want to get this started before the baby even arrives.

    • Brenda Platt-Drucker says

      I’m not sure about the laws in MS as our law firm only handles cases in California. Usually the custody of a child is not determined until the child is born. However, you may be able to file a ‘paternity action’ which would legally acknowledge the father. The remaining custody, visitation and support issues would then be resolved once the child is born. It would be best for you to speak with a family lawyer in your state who can help you with your legal options and rights.
      Hope this helps!

  6. Noah C says

    Here in CA, my ex-gf is pregnant, she is a drug user and in/out of treatment facilities. There is a restraining order on her, currently. We are permitted to discuss child exchange etc. only. I believe this child is mine, not 100% sure. I have a stable life, home, etc. to have “my” child. Do I have to wait until the baby is born to file my request for custody?

    • Brenda Platt-Drucker says

      You cannot address custody until the child is born. However, you can file a ‘Paternity Action’, to establish yourself as the father. This will make the process of arranging for custody faster once the child is born. You can also request a DNA test in order to be positive that the child is yours. What month of the pregnancy is ex-gf? If you wish to discuss further, please call our office @ 818-630-5503.
      Thank you for contacting Legal Action Workshop!

  7. Jess says

    So I’m pregnant and the father wants nothing to do with the baby. His sister is crazy and causes trouble whenever she can. Since he doesn’t even want to be involved and wants to give me full custody how can I apply for full custody before the birth of the child to protect the child from his sister.

    • Brenda Platt-Drucker says

      In what state are you? In California, you cannot file for custody until the baby is born. However, you could file a ‘paternity action’ to simply establish the father and the other matters such as custody, visitation and support would be addressed once the child is born. If the sister is harassing you, you could file a restraining order against her. It would be best to speak with a family law attorney regarding both of these issues. If you’re in CA, you may call us @ 818-630-5503.
      Thank you for contacting Legal Action Workshop!

  8. Anthony says

    My girlfriend is pregnant and she currently lives with me in Nevada. She has been threatened me and told me she will move to another state to have our baby if I don’t do what she ask. Is there anything I can do to prevent her from doing this? I just want to be part of my child life without living in fear

    • Brenda Platt-Drucker says

      We are a law firm in California…so I’m not sure of the laws in Nevada. It would be best to contact an attorney in your state to see how to proceed. You may need to file a ‘paternity action’ which would establish you as the father.
      Hope this helps!

  9. Matthew says

    What do you do when either the father or the mother are qualified to raise children? I am a gay man and I do not want my unborn niece or nephew being raised by these degenerates.

    • Brenda Platt-Drucker says

      If the mother of the unborn child is doing something that could harm her child (as in alcohol consumption or drugs), Department of Children and Family Services could be called and they would investigate. If both parents would like to put their child up for adoption then you or others could step forward to adopt.
      Hope this helps!

  10. John says

    My current gf is pregnant with our unborn daughter and as of right now our relationship doesn’t seem like it’s going to last. I would like to file for custody of my unborn daughter incase we separate. I honestly don’t trust her to raise my daughter by herself since she already has a 16 yr old son who’s very problematic. Child services was already involved with her and her son due to all the problems he has caused. Can u please help me find a way to get full 100% custody of my daughter

    • Brenda Platt-Drucker says

      It’s best for you to speak with an attorney in the state in which the mother lives. Typically you cannot file for custody before the child is born but in California you can file a ‘paternity action’ to establish you as the father. Once the child is born you would be able to address custody in a faster way. Again, it’s best to make a time to have a consultation with an attorney in the correct state so that you will understand your legal rights.
      Hope this helps!

  11. ashley benson says

    my boyfriends ex girlfriend lied aobut being pregnant and is having the baby in 6 weeks and she is mentally unstable to raise the child because she is a patholgical liar and lives in a house of rape can the father get full custody even though he has no income and no job?

    • Brenda Platt-Drucker says

      When you say ‘father’ do you mean the biological father of the unborn child? Whomever is the biological father of the child (once born) would request a DNA test to determine paternity. This is usually done in the filing for a Paternity Action. I would suggest speaking with a family law attorney in your state for advice as to moving forward.
      Hope this helps!

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