Child Custody Prior to Birth - Does the Father Have Rights?

One frequent topic of queries to this office on child custody involves questions about rights to children yet to be born.  My most frequently delivered answer to these queries (unless there are issues of serious potential harm) is that Kentucky litigation regarding these custodial issues must await the birth of the child.

In a recent case involving sports celebrities which made the rounds in New York and California, a father attempted a novel approach - an action to establish paternity prior to the birth of the child. The mother's response was to move to New York, where she had the child and filed her own action for custody there.  While the initial court adjunct in New York found for the father and sent the case to California for adjudication (which granted custody to the father and his new wife, who he married while the mother was still pregnant), the decision of that New York court official was reversed on appeal, on the basis that jurisdiction should vest in the state where the child was born.

Our feeling is that this confirms the notion in Kentucky that litigation regarding issues of child custody and allocation of parenting time are best left to the period of time after a child is born, both as a matter of statute and a matter of practicality; any litigation regarding these issues must also include an analysis of the availability of living circumstances, human and material resources, factors which are often not clear until after the birth of a child.

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