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-   -   Pregnant wife wants divorce. Who gets the kid? (https://www.askmehelpdesk.com/showthread.php?t=235405)

  • Jul 8, 2008, 10:14 PM
    michael_martin22
    Pregnant wife wants divorce. Who gets the kid?
    My wife is only 14 weeks pregnant, but wants a divorce... my only question is: If we get a divorce now... how will we go about custody proceedings after the child is born?
  • Jul 8, 2008, 10:47 PM
    N0help4u
    You would go to the family court and apply for joint custody.
    She will most likely apply for child support and possibly try to go for full custody
  • Jul 8, 2008, 11:07 PM
    DesElms
    If you're the biological father, then that fact remains the same whether you're married. After the child is born, paternity must be established. If you're present at the hospital during birth, and acknowledge your paternity, it will be so shown on the birth certificate. If you're not and you later deny it, your by-then-ex-wife can get a court to order a paternity test, and you will be established as the father.

    Once you're established as the father, if you do nothing, the hospital and most others standing around when it's time for the mother and child to leave will assume that the child will leave with the mother. If you try to take the child from the hospital, it's likely you'll be stopped... by police, if necessary.

    If you challenged in court by filing a custody suit, the judge would likely rule that a child so young should be with its mother so that it can better thrive... unless, of course, you can show that the mother is unfit or something like that. However, even if the judge rules in the mother's favor at that point, you'd be entitled to see the child. Whether you'd be permitted to visit, unsupervised, and by taking the child from the mother's home for a day or for a weekend at a time would be entirely up to the judge. Different judges rule differently.

    Once the child is older, and no longer quite so dependent on its mother; and assuming it knows you as its father, your chances of getting custody of the child would be statistically better; though if the mother is clearly fit and a good parent, you would likely not prevail.

    Joint custody would be a more likely possibility. In any event, though, the court will always, always, always do what it believes is in the best interests of the child... not the parents.

    Honestly, though, is this whole possible unfolding of events really how you and your wife believe you should play it? Between now and the birth, the two of you have plenty of time to sit down with a counselor, and a family law attorney, and figure out a gameplan that will be, first and foremost, in the best interests of the child, while still being workable and reasonably convenient for each of you.

    Do not treat the child like a pawn in a power struggle between you. It will be the child, most of all, that will suffer under such circumstances. Be the grown-ups. Suck it up and do the mature and adult thing. If you divorce, figure out a way to get along with one another enough that the child sees that even though you're not living together, you still respect one another... maybe even care about one another. Teach the child love and harmony, not anger and fighting and power struggles.

    Whatever the two of you do, if you don't stay together, seek PROFESSIONAL help. Find a marriage counselor who can help you both see the most psychologically health way to deal with the problem; and find not just a family law attorney, but get a family law attorney who specializes in something called "collaborative law." Don't make it adversarial if you can possibly avoid it.

    This whole thing doesn't have to be the mess you're probably worrying that it will be. The two of you can work it out like mature adults if you want to. The court is more likely to respect and agree to a custody and visitation plan that is both fair and equitable, and which is clearly the wish of all parties concerned. If you go into court and make the judge decide, neither of you will be happy. It's far, far better to be adults, reach agreement, act in a fair mature way, and come to the judge having worked-out all the kinks and in full agreement.
  • Jul 9, 2008, 06:01 AM
    JudyKayTee
    Quote:

    Originally Posted by DesElms
    If you're the biological father, then that fact remains the same whether or not you're married. After the child is born, paternity must be established. If you're present at the hospital during birth, and acknowledge your paternity, it will be so shown on the birth certificate. If you're not and you later deny it, your by-then-ex-wife can get a court to order a paternity test, and you will be established as the father.



    I thought the presumption was that the husband was the father unless someone stepped forward and demanded paternity testing - ?
  • Jul 9, 2008, 06:16 AM
    N0help4u
    Yeah to my understanding if they are married the father is considered the father and no testing required.
    If they are NOT married some states have a mandatory paternity test before a guy can sign

    IF paternity is questioned then a test is done.
  • Jul 9, 2008, 06:50 AM
    N0help4u
    Yeah
    Was going to say that
    The un married girl that didn't want a paternity test about a couple weeks ago
    And the married one wanting another guys name on the birth certificate and they wouldn't let her do it for confidentiality reasons.
  • Jul 9, 2008, 09:51 AM
    DesElms
    Quote:

    Originally Posted by JudyKayTee
    I thought the presumption was that the husband was the father unless someone stepped forward and demanded paternity testing - ?

    When a couple is married, the husband at the time of birth, no matter who the father really is, is always presumed to be the biological father. If he objects and claims that he isn't the father, then a paternity test will usually be needed.

    If the mother names another man (other than her husband) as the father, and if said other man acknowledges that he is the biological father, then in some states that, alone, will let the husband off the hook. In other states, even that won't do it, and a paternity test will need to be obtained.

    In most states, whatever wrangling back and forth that the parties will do regarding such issues must be done within a certain number of days of the birth, or it will all be moot and the husband will be assumed to be the biological father, even if he can later prove by DNA testing that he's not.

    But none of these things are at issue, here. The questioner acknowledges that he's the father... and that he wants the child (or at least one could reasonably assume, from the question, that that is his interest). I only framed my answer the way I did so that he would not get the idea that he could just deny it later or anything like that.

    I also brought-up paternity testing because if the couple is no longer married at the moment of birth; and if the mother says something like "I don't know who the father is" to the nurses at the hospital (which she may well do if she doesn't want the husband to have any parental rights), then paternity testing will be the only way that he will be able to prove that he is the father. Remember that what you have brought up about the presumption of fatherhood is tied to who is the husband at the moment of birth, not the moment of conception... or so it is, at least, in most states. If they're not married at the moment of birth, then he may have to put up a fight -- demanding paternity testing -- in order to establish his parental rights.

    In retrospect, maybe I should have framed it all in that context instead of the way I did. I guess I just hoped (and I suppose that that hope affected the way I answered) that he and the wife would be mature and do what was right by the child.
  • Jul 9, 2008, 09:54 AM
    N0help4u
    Yeah I was thinking of the he isn't the dad to try and get out of custody issues
    Some will do that.

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