Proactive Custody Measures Before the Baby Arrives

What You Can and Cannot do when it Comes to Custody of an Unborn Child in New Jersey

Proactive Custody Measures Before the Baby Arrives in NJYou find out your partner is pregnant and are both excited and concerned. Since you are not married to your partner, you wonder what will happen if you break up or if other life events interfere with your relationship. You wonder what you should do to protect your rights. When expecting a child, you want to be sure about establishing your parental rights in New Jersey. You know that at some point, you can ensure you have child custody rights, but you wonder what you can do now. Unfortunately, you cannot file for custody before a child is born, as these determinations can only be made after the baby comes into the world. Fortunately, there are things you can do before a child arrives to best position yourself for success in the custody process post-birth, but you must initiate some important proactive measures pre-birth to accomplish this goal.

Custody Considerations Before Children are Born

When married parents with children live together, custody is typically not an issue. Once they separate or divorce, they must get a child custody order. Unmarried parents must also get a child custody order to establish parental rights. Based on many factors, a family court judge will order legal and physical custody, which may be joint legal custody and joint physical custody, sole legal custody and sole physical custody, or any combination of sole and joint, including visitation. In other words, a child may live primarily with one parent while the other parent has visitation rights or live with each parent according to a schedule of parenting time.

In New Jersey, both parents typically have legal and physical custody over their children during the marriage. Parents must establish custodial rights through the family court in separation and divorce. Legal custody is parental rights to make decisions over where a child lives, their education, medical care, and overall life activities and events. Physical custody pertains to where and with whom the child lives. The child’s parent with physical custody is responsible for the child’s day-to-day matters.

Early Actions to Lay the Groundwork for Custody Rights Before Birth

Solidify Parentage

When unmarried parents have a child, the mother is recognized; however,  the other parent must establish paternity to prove they are the child’s biological parent before they have legal and physical custodial rights. Establishing paternity and child custody protects the parent’s rights should they no longer have a working relationship with the child’s biological mother. New Jersey allows a parent to establish parentage of an unborn child but does not allow the parent to file for custody until the child is born. The proof of paternity is essential evidence for establishing custodial rights.

DNA testing is the surest method of verifying paternity and is often a prerequisite to seeking child custody. The court may order DNA testing, or the child’s mother may voluntarily acknowledge the father by signing a certificate of parentage at the hospital. In voluntary cases, the father’s name is likely on the birth certificate.

Communicate and Document

Keeping communication lines open with your child’s other parent and documenting what occurs between you from inception through pregnancy and birth will help you in future court proceedings for custody. For example, you want to record each prenatal visit you attended or discussions about birth plans, financial contributions, and conversations about possible shared parenting time. The more documentation, including photos and videos, the stronger your bid for custody later on.

Primarily, however, you want to establish cooperation and communication to be able to work with the other parent for custody and visitation purposes. Making your wishes known to the other parent that you intend to be in your child’s life and will seek parenting time is important to establish from the start.

Create a Prenatal Agreement

In New Jersey, courts do not issue child custody orders before birth; however, the parties may begin the process before birth. A judge can sign a final order after the birth, but the parents may start negotiating, creating agreements about custody, and getting the process going before the due date. Just as divorcing parents are free to create a parenting agreement rather than have the court decide, so, too, unmarried parents can agree to custody arrangements and schedules before the child’s birth.

Unmarried parents can determine who has legal and physical custody. They may agree that both have legal custody, but the child resides primarily with the mother or father. Then, they can arrange a visitation schedule for the other parent. They could also share physical custody evenly or otherwise. In that case, both parents have legal and physical custody. Voluntarily agreeing to one parent’s sole custody may be appropriate in certain situations, for example, when one parent has substance abuse problems or will be out of the country for a significant time. An agreement can cover the parenting schedule throughout the year, including future school years, holiday schedules, and vacation times.

Formalizing a Prenatal Custody Agreement After a Child’s Birth

By filing early on after the baby is born, the child custody process can begin formally. As long as the agreement considers the child’s best interests, a court can make the agreement the custody order. If the parties agree to where the child will live and how the parents will split time with the child, a court can make orders based on that agreement or make an order should the parties disagree. Unmarried parents have the same custody rights as married parents, except that unmarried fathers must prove paternity before a court will order custody rights. Both unmarried and married have parenting rights, and a court will order custodial time and rights for each parent based on the child’s best interests. A court presumes the child’s best interest is to have both parents in their life, whether the parents are married or not.

When a family court judge determines legal and physical custody, the child’s best interests are the court’s primary concern. Both parents may want full custody of their child, but the court considers the child’s safety, health, and well-being first before making custody orders.  A court looks at all factors affecting the child, including the home environment, the relationship with each parent, whether the parent is involved with the child’s life, the child’s preference (if the child is old enough), how the parents communicate, domestic violence history, work schedules of each parent, and the proximity of the parents. However, the order cannot be final until the child is born.

Special Circumstances that May Impact Court Decisions when the Baby is Born

Early Actions to Lay the Groundwork for Custody Rights Before Birth in Passaic County NJ One significant factor in determining custody is the child’s safety. When one or both parents are involved in domestic violence or substance abuse or are unfit parents for other reasons, a court may not award parental rights to the unfit parent. If both are unfit, the child may be placed in protective care through the state’s child protective services.

A court may temporarily or permanently deny a parent legal and physical custody. For example, a parent who is serving a life prison term may not have parental rights granted. A parent with anger or substance abuse problems may be denied parental rights conditionally until they take specific steps to end the issues, like rehabilitation, counseling, or anger management classes. A court can also order monitored visitation with one parent until they have completed all the conditions required to become a fit parent.

In situations where a mother intends to move with her child, a court must first give permission for the move in the absence of an agreement between the parents. Again, considering the child’s best interests first and foremost, a court must hear the evidence for the move before deciding. A court can hear testimony of the parties as to their wishes, intentions, and involvement with the welfare of the child through pregnancy, establishing that the father is committed to the pregnancy and child. It gives the father an opportunity to evidence their commitment through documentation and record-keeping throughout the pregnancy.

A judge may be less inclined to approve the move when a father has been actively involved with the child even before birth. Thus, proof of the father’s participation in prenatal care and appointments, birthing classes, and financial responsibility pre-birth may help his case for custody, showing his intention and commitment to parent the child.

Talk to an NJ Family Attorney about Pre-Birth Custody Preparation Before Your Baby Arrives

Family court judges have great discretion in making custody orders. The several factors that help a judge decide what is in a child’s best interests are not necessarily equal, and a judge may consider some factors as weightier than others. Since judicial discretion plays a role in custody orders, it is essential to have a strong legal advocate to persuade the judge to favor the factors favorable to your custodial rights and wishes. At Montanari Law Group, our experienced team of New Jersey family law attorneys will do everything possible to paint a picture of you as a highly fit and dedicated parent, presenting compelling evidence that proves your devotion and involvement. Consulting with our child custody lawyers as early as possible will give you an edge at a later custody hearing. We can advise you to journal, record, and document, knowing that the more specific and detailed the evidence, the more likely a judge will understand your intentions.

Providing advice and walking you through the process is our commitment and we take great care in ensuring that you feel heard and successfully advocated for. Seek advice from a talented family law attorney at our Little Falls, New Jersey, law firm to handle your pre and post-birth custody matter. We serve clients in Paterson, West Orange, Haledon, Teaneck, Bloomfield, Franklin Lakes, Wyckoff, and cities across Northern New Jersey. Begin by getting answers to your questions by contacting us at (973) 233-4396 for a free consultation.

REQUEST YOUR
FREE CONSULTATION

To speak with one of our highly knowledgeable attorneys, contact us today at (973)-233-4396 or toll-free at (888)-877-7985. You can also complete the form below to begin your conversation. We are a personalized, boutique-style law firm that offers free initial consultations and flexible appointment options.