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Fathertobe · Jan 18, 2009, 06:55 PM

California

I'm going to be a Father in a couple weeks:) and the Mother recently left our house for her Mother's. We were dating for a year and she is due on Feb 6. I have been supporting both of us the whole time and I have been involved in every part of the pregnancy(As much as I can be:p).

Do I have any rights regarding being at the hospital for the birth of our son?

Can I take the baby home from the hospital?

Does joint custody start immediately after the birth of our Son?

The Mother says she will call me when she goes to the hospital and I can be there for the birth of our son. She says custody will be discussed after the birth and I can see him as much as I want at her house in the meantime. I'm gratefull for the opportunity to be in my son's life as much as possible, but terrified at the other possibilities.

Should I run to a Lawyer or suck it up and agree to everything she wants in order to be in my child's life from the beginning?

All legal advice and personal experience is appreciated.

Thanks in advance

Fr_Chuck · Jan 18, 2009, 07:10 PM

1. no you have no rights to be at the hospital. Only if she agrees

2. You can take the baby home only if the mother allows and agrees

3, there is no automatic custody unless she lists you on the birth certificate, but you will need to file in court for a order of custody since you are no longer living together.

You need an attorney and you need a custody order, a order of visits and a child support order in place

stevetcg · Jan 19, 2009, 06:59 AM

If she is going to allow you to be in your child's life at the beginning, suck it up... because there isn't anything you can do until after the kid is born anyway.

If she plays nice for the first few days, it makes everything easier and faster for everyone since you will likely be the legal father from day 1. At that point it is simply a matter of going to court and getting visitation/custody orders.

Be aware: visitation of a newborn is usually limited, especially if the mom is breast feeding her. Overnight visits/joint custody will usually only occur after the child is weened.

On the other hand, if you can play nice with Mom, that may allow you much more access then you would.

cadillac59 · Jan 19, 2009, 10:48 AM

Do I have any rights regarding being at the hospital for the birth of our son? Can I take the baby home from the hospital?

Of course. If you are the father you have every right to be there. You will be asked to sign a form to establish your parentage known as a Voluntary Declaration of Paternity ("Pop-Dec"). Once you and the mom sign it you are legally the child's father-- no need to go to court-- and the document is the equivalent of a judgment of paternity. Also, your name will appear on the birth certificate once the Pop-Dec is signed.

Does joint custody start immediately after the birth of our Son?

It sure does. "The mother of an unemancipated minor child and the father, if presumed to be the father under section 7611, are equally entitled to custody of the child." (Cal.Fam. Code Section 3010(a)). [emphasis added]

The Mother says she will call me when she goes to the hospital and I can be there for the birth of our son. She says custody will be discussed after the birth and I can see him as much as I want at her house in the meantime. I'm gratefull for the opportunity to be in my son's life as much as possible, but terrified at the other possibilities.

Terrified of what?

Should I run to a Lawyer or suck it up and agree to everything she wants in order to be in my child's life from the beginning?

This shouldn't be necessary. However, if the mom refuses to sign the Pop-Dec and/or claims you are not the biological dad you will have to file an action in court to determine your parentage. But, even before you prove you are the father, you can obtain orders on custody and visitation while your case is court is pending.

stevetcg · Jan 19, 2009, 10:51 AM

Originally Posted by cadillac59

Do I have any rights regarding being at the hospital for the birth of our son?Can I take the baby home from the hospital?

Of course. If you are the father you have every right to be there. You will be asked to sign a form to establish your parentage known as a Voluntary Declaration of Paternity ("Pop-Dec"). Once you and the mom sign it you are legally the child's father-- no need to go to court-- and the document is the equivalent of a judgment of paternity. Also, you name will appear on the birth certificate once the Pop-Dec is signed.

Does joint custody start immediately after the birth of our Son?

It sure does. " The mother of an unemancipated minor child and the father, if presumed to be the father under section 7611, are equally entitled to custody of the child." (Cal.Fam. Code Section 3010(a)). [emphasis added]

The Mother says she will call me when she goes to the hospital and I can be there for the birth of our son. She says custody will be discussed after the birth and I can see him as much as I want at her house in the meantime. I'm gratefull for the opportunity to be in my son's life as much as possible, but terrified at the other possibilities.

Terrified of what?

Should I run to a Lawyer or suck it up and agree to everything she wants in order to be in my child's life from the beginning?

This shouldn't be necessary. However, if the mom refuses to sign the Pop-Dec and/or claims you are not the biological dad you will have to file an action in court to determine your parentage.

Hate to argue with you Caddy but if the mother does not want him in the hospital, the hospital will side with her and he won't be allowed in.

stevetcg · Jan 19, 2009, 10:52 AM

cadillac59 disagrees: You can establish rights to custody before a child is born.

Not if paternity is not established or questioned.

cadillac59 · Jan 19, 2009, 10:58 AM

Originally Posted by stevetcg

Not if paternity is not established or questioned.

You can establish paternity and rights to custody before a child is born. This has been done many times and there are appellate court cases in which this has never even been questioned.

cadillac59 · Jan 19, 2009, 11:00 AM

Originally Posted by stevetcg

Hate to argue with you Caddy but if the mother does not want him in the hospital, the hospital will side with her and he won't be allowed in.

I'm not sure what the hospital staff would do. You're probably right if the mom says the guy is a stranger and a wacko or something and lies and says she doesn't know who he is; but, I don't think that's what's going on here.

stevetcg · Jan 19, 2009, 11:01 AM

Originally Posted by cadillac59

You can establish paternity and rights to custody before a child is born. This has been done many times and there are appellate court cases in which this has never even been questioned.

Well sure, it COULD. Doesn't seem to be the case here though with the "i'll give you a call when im heading to the hospital" remark though.

stevetcg · Jan 19, 2009, 11:03 AM

Originally Posted by cadillac59

I'm not sure what the hospital staff would do. You're probably right if the mom says the guy is a stranger and a wacko or something and lies and says she doesn't know who he is; but, I don't think that's what's going on here.

He has no legal RIGHT to be in the hospital. She has 100% say in who can and cannot come in. She is the patient and his is a visitor. Its similar to a case where both parents have legal custody. The one with the physical custody calls the shots. And I assure you, the hospital will not let him leave with the child if she doesn't want him to.

cadillac59 · Jan 19, 2009, 11:04 AM

Originally Posted by stevetcg

Well sure, it COULD. Doesnt seem to be the case here though with the "i'll give you a call when im heading to the hospital" remark though.

But there's nothing to stop him from going to court right now if he wanted to to establish his paternity and custodial rights to the unborn child, which would go into effect upon the child's birth. You don't have to wait to until the baby is born, contrary to popular drugstore-counter [and wrong] advice.

stevetcg · Jan 19, 2009, 11:06 AM

Originally Posted by cadillac59

But there's nothing to stop him from going to court right now if he wanted to to establish his paternity and custodial rights to the unborn child, which would go into effect upon the child's birth. You don't have to wait to until the baby is born, contrary to popular drugstore-counter [and wrong] advice.

On the other hand she could go to court also and say "he isnt the father" and that's pretty much the end of that court case until the child is born.

cadillac59 · Jan 19, 2009, 11:09 AM

Originally Posted by stevetcg

He has no legal RIGHT to be in the hospital. She has 100% say in who can and cannot come in. She is the patient and his is a visitor. Its similar to a case where both parents have legal custody. The one with the physical custody calls the shots. And I assure you, the hospital will not let him leave with the child if she doesn't want him to.

I disagree. What if they were married, would that change the analysis?

I will agree that it's the hospital's call in the absence of a court order how to handle this kind of situation. But to make the blanket statement, as if it were a rule of law (which it is not) that he has no "legal" rights to be at the hospital unless the mom consents is simply untrue. If you have legal authority for this, cite it.

Plus, you are confusing the terms "legal custody" and "physical custody". Legal custody is decision-making authority. Physical custody is with whom the child resides. The one with legal custody "calls the shots" (if it's joint legal they both do equally), not the one with physical custody.

stevetcg · Jan 19, 2009, 11:10 AM

Caddy - it seems that our disagreement is due to our approach. You are approaching it from a best case, mom is happy and cooperative approach.

I always approach issues from a "worst case, opposition hates me" standpoint.

I think in this case we're both right. It all depends on the mother.

cadillac59 · Jan 19, 2009, 11:12 AM

Originally Posted by stevetcg

On the other hand she could go to court also and say "he isnt the father" and thats pretty much the end of that court case until the child is born.

Well, yeah if a judgment were entered establishing he is not the father. But that would end it for all time, not just until the child were born.

stevetcg · Jan 19, 2009, 11:12 AM

Originally Posted by cadillac59

I disagree. What if they were married, would that change the analysis?

I will agree that it's the hospital's call in the absence of a court order how to handle this kind of situation. But to make the blanket statement, as if it were a rule of law (which it is not) that he has no "legal" rights to be at the hospital unless the mom consents is simply untrue. If you have legal authority for this, cite it.

Plus, you are confusing the terms "legal custody" and "physical custody". Legal custody is decision-making authority. Physical custody is with whom the child resides. The one with legal custody "calls the shots" (if it's joint legal they both do equally), not the one with physical custody.

Even if they were married she would have final say on who was allowed into the hospital. I cannot speak to every hospital everywhere, but the ones that Ive had child related associations with that is the case. The hospital doesn't give a fig who the person it... if the mom says no, SHE is the patient. SHE has all the rights in their eyes to who attends the birth, who visits etc.

stevetcg · Jan 19, 2009, 11:14 AM

Originally Posted by cadillac59

Well, yeah if a judgment were entered establishing he is not the father. But that would end it for all time, not just until the child were born.

What I am saying is that in a prebirth case of he said she said, they will side with the mother (she knows who she has slept with) until actual evidence can be produced to verify his side. A court will not order an amniocentesis to determine paternity.

cadillac59 · Jan 19, 2009, 11:15 AM

Originally Posted by stevetcg

Caddy - it seems that our disagreement is due to our approach. You are approaching it from a best case, mom is happy and cooperative approach.

I always approach issues from a "worst case, opposition hates me" standpoint.

I think in this case we're both right. It all depends on the mother.

Like I said earlier, if the mom lies and says she has no idea who this guy is, the hospital will call security and run him out. Of course. But do you really think this is what's going to happen. I think the mom is going to acknowledge him as the father and the hospital will treat him like any other dad (married or otherwise). They're not going to ask, "is it okay if we let him stay?" Why assume that?

stevetcg · Jan 19, 2009, 11:18 AM

Originally Posted by cadillac59

Like I said earlier, if the mom lies and says she has no idea who this guy is, the hospital will call security and run him out. Of course. But do you really think this is what's going to happen. I think the mom is going to acknowledge him as the father and the hospital will treat him like any other dad (married or otherwise). They're not going to ask, "is it okay if we let him stay?" Why assume that?

Of course I expect the mom to act like he is the dad. Presumably he is and she wants to keep things cordial. But she wouldn't be the first woman in history to change her mind, get in a fight with the OP, just get overwhelmed... pregnant women are unstable (from experience) so I aim to prepare him for the worst.

Hope for the best, of course.

cadillac59 · Jan 19, 2009, 11:18 AM

Originally Posted by stevetcg

What I am saying is that in a prebirth case of he said she said, they will side with the mother (she knows who she has slept with) until actual evidence can be produced to verify his side. A court will not order an amniocentesis to determine paternity.

Yeah, but in California it doesn't matter if paternity is established or not. You can get orders on custody and visitation while the case is pending and before paternity is established. So if mom disputes paternity pre-birth, the court can and may grant dad custodial rights upon the birth of the child and concurrently order genetic testing once the baby is born.