Divorce During Pregnancy in California

Pregnancy can bring mixed feelings depending on the circumstances and facts surrounding the event. For a married couple who has been trying to get pregnant for months or even years, it can be a joyous event. But for a couple dealing with addiction, domestic violence, cheating, or simply marital uncertainty, pregnancy can complicate a rocky marriage, and bring several unanswered questions.

While few people put “pregnancy” and “divorce” in the same sentence, this situation actually happens to a lot of married couples. Since some states bar people from getting a divorce during a pregnancy, it’s no wonder why so Californians ask, “Can people actually get a divorce during a pregnancy?”

Paternity is the Biggest Hurdle

California couples can file for divorce during a pregnancy, but they will face certain challenges, namely over paternity. A pregnant woman or her husband can certainly file for divorce during the pregnancy, but they’ll need to wait until after the baby is born to finalize it due to paternity questions.

Understandably, such a case will focus over those paternity concerns. If the couple was married when the baby was conceived, then by law the woman’s husband is the child’s legal father. However, if the husband suspects that his wife was cheating or if the woman knows someone else, not her husband, may be the father, then a paternity test will need to be performed after the child’s birth.

When the Husband is the Father

Let’s say that the husband is without a doubt the child’s father and there is no question over paternity. Even still, child-related issues will have to be resolved after the baby is born. Such issues revolve around child custody, child support, medical support, labor and delivery expenses (who will pay for them), daycare, etc.

Aside from child custody and support, there’s another issue of concern: The labor and delivery. For some women, this is a sensitive subject. If the husband’s affair led to the breakdown of the marriage, his wife may not want him anywhere near the delivery room. Or, if the husband was physically abusive before or during the pregnancy, his very presence may cause a lot of anxiety for his wife and she may not want him at the birth. So, what’s a father to do?

In California, it would be very difficult to find a hospital that would let a father be there for the birth if the mother requested that he be excluded. But this can backfire on the wife. The father could argue in court that the mother barred him from bonding with his biological son or daughter by denying him the right to witness the child’s birth.

A father may have to stay away from his wife’s “Golden Hour” if she insists, but he may be able to get the court to allow him in to see his baby shortly after the birth itself, after the mother and baby have had skin-to-skin contact. To do this, the father’s family law attorney can request that the court give him bonding time after delivery through a custodial order.

After the Baby is Discharged from the Hospital

It’s important for divorcing and biological fathers to know that after their baby is discharged from the hospital, the court will be concerned with the best interests of the child, and since babies need to bond with their mothers and they don’t do well with changing schedules and varying caregivers at first, it can be tricky for a father to get a lot of visitation time in the first few months of life, especially if the baby is nursing.

For example, it may not be possible for a father to have an overnight visit with a breastfeeding infant, so he may have to seek shorter daytime visits with the mother present for nursing, if that is necessary. The goal is to foster a father-child bond so eventually, the infant is comfortable having overnight visits with his or her father. Once the child starts to take the bottle or when they stop breastfeeding, things get easier.

When the Husband is Not the Father

Suppose the woman’s husband is not the child’s biological father, but the biological father was a one-night-stand, he’s passed away, he’s a bad person, wants nothing to do with the child, or the husband would be a much better father. What then? If the husband wants to raise the child despite the divorce, he may because technically, he’s the legal father assuming the baby was consummated during the marriage.

Here’s what couples need to know in this scenario:

  • The biological father has up to two years to petition the court for a paternity test.
  • If the boyfriend asks for a paternity test and the child is his, he may not be entitled to custody, but he would be entitled to visitation. Plus, he would be ordered to pay child support.

To learn more, read: “What You Need to Know About Paternity.”

Disputing Paternity in Los Angeles

“The laws on parentage are very complicated. If there already is a court order that says, for example, that someone is the father of the child, and he or the mother wants to ask for genetic (DNA) testing, it may be too late. Or, the law may declare someone the legal father, even if the genetic tests say that he is not the biological father. In same-sex parenting situations, there are also complications regarding the intent of the people to become parents, and other issues,” according to the California Courts.

To learn more about pregnancy and divorce, contact our Los Angeles divorce firm to schedule a free case evaluation.