Rights of Fathers of an Unborn Child

When a woman is pregnant, things can get tricky for the child’s father if the couple has split up. Does a father have rights to an unborn child? Can the unmarried father impact the caregiving decisions the mother of his child makes during pregnancy?

Within the prenatal period, father’s rights are limited from a legal standpoint, but men can still claim them even if the child is not born yet.

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What Rights Does a Father Have to an Unborn Child?

Mother is fully responsible for her child during pregnancy. However, within the natal and postnatal periods, she can always ask the father of her child for assistance.

The U.S. legislation does not prohibit you from active participation in your child’s life when it is not born yet. Even your primary care and support can ensure the mother’s and the child’s well-being, plus prove you a loving and reliable father.

Fathers’ rights during pregnancy

Caregiving to the unborn child can be very challenging for an unmarried couple that has split up. Speaking of the health and well-being of your unborn child, you as a father will always need the mother’s consent to the following aspects of her new state:

  • Access to the pregnant woman’s medical records;
  • Supporting her at appointments with doctors and providing her with necessary treatment;
  • Attending group prenatal classes;
  • Being present during the delivery of the child;
  • Visiting the mother and the newborn child in the hospital and assisting her in postnatal care.

If you and your partner agree on the points above, you as a father can eagerly help the mother of your child. In the future, you can rely on establishing your parental rights and gaining custody of your child.

Unmarried fathers’ rights

As an unwed father, you have the legal right to protect your unborn baby from abuse and undue influence. For example, when a pregnant woman takes drugs or alcohol, for sure, the child’s life is also endangered. To prevent harm and undue influence as soon as possible, you should contact child protective services and call the police if necessary. The more help you have offered during the mother’s pregnancy, the higher chances are that the court will approve granting you custody of your child.

Since learning of the child’s paternity, unwed fathers may still face difficulties. You can seek legal advice from an experienced father’s rights attorney near you.

Abortion

On June 24, 2022, the Supreme Court overturned Roe v. Wade case in favor of Dobbs v. Jackson Women’s Health. Since 1973, Roe v. Wade has protected women’s right to abortion in the U.S. According to current law 2022, seven states have banned abortions, and 26 states are expected to prohibit them soon.

The Supreme Court does not give rights to the father of an unborn child to prevent abortion. Fathers do not have to be notified before an abortion. The decision is left entirely in the hands of the mother.

Medical care

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) has firm privacy rules preventing health care providers from sharing medical information with anyone else if the patient doesn’t want it. HIPAA legislation also regulates the pregnancy case of unwed couples.

If you are the biological father of an unborn child, you have to get the mother’s permission to view any medical records pertaining to your unborn child. If you cannot get permission, you can’t review any medical documents about the health and welfare of your unborn child. However, showing that you are willing to support your unborn child’s medical care can help you prove your parental rights once the child is born. It is possible even if you can only show up at the doctor’s appointments and if the mother is turning you away, which the medical staff has witnessed.

Birth

The mother has the right to deny anyone’s permission to support her in a delivery room. If you are unwed, you do not have the right to participate in your childbirth unless the mother gives you explicit permission. Nevertheless, any show of support to the pregnant woman can go a long way toward building your custody case.

When a child is born, unmarried fathers can take parental leave like mothers. According to the Family and Medical Leave Act (FMLA) 1993, you can take unpaid and job-protected 12-week family leave for birth or adoption care if you as an employer or employee meet specific requirements. On the other hand, in 2020, the FMLA was amended by the Federal Employee Paid Leave Act (FEPLA) that provides 12 weeks of paid parental leave, which is currently available only in the following states:

  • California
  • Colorado
  • Connecticut
  • Delaware
  • Maryland
  • Massachusetts
  • New York
  • Oregon
  • Rhode Island
  • Washington
  • District of Columbia
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Adoption

In some situations, the mother might be considering adoption. Unfortunately, you cannot stop her from making this decision, but you can object to another person’s adoption of your child.

The law requires consent from each child’s parent to launch the adoption process. At this point, you have a short window of opportunity in which you can defend your rights as a father who is willing to take care of his own child.

Besides emotional support and help for the mother of your child, you should cover considerable financial expenses for prenatal and postnatal care. You will need all related bills in court to prove your parental rights and reject your child’s adoption. Generally, you may also need an indication to petition for your child’s custody no later than 30 days. Still, you should check out recent state regulations regarding unmarried father’s rights and the adoption of their children.

Custody

Custody is a challenging legal procedure that varies from state to state and depends on the child’s age. Custody is another situation that proves difficult for fathers during pregnancy because no legal rules stop a pregnant mother from leaving the state and taking full custody of the baby before its birth.

Before you start suing for your child’s custody, you should provide a paternity test to prove who is the child’s biological father. When it is not born yet, you can establish paternity over it by doing, for example, a Non-Invasive Prenatal Paternity (NIPP) test. It is one of three types of DNA tests that can prove the paternity of the unborn child. However, you and the mother of your child should consult a doctor before doing any similar paternity tests to choose the safest one and the most suitable time during pregnancy.

Then, after your child is born, you should ensure that your name appears on the birth certificate. It is also recommended to sign an affidavit in front of the court to confirm your parentage.

Another option to prove your custody rights is to create a parenting plan indicating your and the mother’s caregiving responsibilities for your child.

Custody is another example of where you can protect your rights to your unborn child by trying to maintain contact with the mother and documenting it, providing financial support for tests or medical screening. Once the child is born, you can ask your father’s rights attorney to file for your custody rights as the father.

How to Protect Your Rights as a Father?

There are some efficient ways of safeguarding your father’s rights when your ex-female partner is expecting your child.

Before the child is born

Before a child is born, there are a lot of tests and health care decisions that take place. As a father, you might be unable to stop the mother from a health care decision or any other medical decision that can affect your child’s health. However, contributing to the cost of prenatal care can go a long way toward legally demonstrating your commitment to the child.

At birth

The best way to protect your rights as a father is to get a legal paternity test. Establishing proof that you are the biological father does not automatically give you rights for custody or visitation. However, it can give you the legal grounds to make decisions regarding the care of your child, such as medical treatment immediately after the child is born or visitation.

After the child is born

Once the child is born, the best method of paternity is to be at the hospital and put your name on the birth certificate. In some states, you can sign a legal document called the Affidavit of Parentage to establish your paternity. You can get this when the child is born and sign it immediately.

Once you have established your paternity, you can file with your local courts to get custody and visitation rights over your child.

FAQ

When to get an attorney for father’s rights before birth?

Consider hiring an attorney if you are concerned about your father’s legal rights to an unborn child. An attorney can help you establish paternity and follow up with the courts by filing documents and dealing with your case to the end.

Suppose you are concerned for the health and safety of your unborn child because of domestic violence or any alcohol or drug abuse committed by your child’s mother. In that case, you can contact child protective services or the police. During this time, an investigation will take place. Still, it can buy you time while working with an attorney to address other parental issues.

What if I’m not the biological father of the child?

You can undergo an adoption or custody procedure if the child’s biological parents agree. If the mother is the only responsible parent, you should assist her fully in prenatal and postnatal care, cover all related costs, and gather all the evidence of your care for the court hearings.

Why should I establish paternity?

Obtaining official rights for your child’s care as a father allows men to legally support their children in every essential aspect of their lives. There are other considerable benefits:

  • Being emotionally involved with your child;
  • Introduce your child to your family side;
  • The legal right to access your child’s medical records;
  • The legal right to ask the court to set parenting time and custody rights.

Final Thoughts

Overall, as the unwed father of an unborn child you should do what you can to maintain a healthy and positive relationship with the mother of your child. Try to communicate with her even if you no longer have an intimate relationship. Remaining friendly will benefit you if you decide to gain paternity and custody rights over your child.

Do not be afraid of being and staying present in your child’s life, from the first breath that your kid takes to the moment he or she will become an adult.

Article by Megan Thompson

Megan Thompson is a legal writer at Lawrina. Megan writes about different law practice areas, legal innovations, and shares her knowledge about her legal practice. As a graduate of the American University's Washington College of Law she is an expert of law in Lawrina's team and has a slight editing touch to all content that is published on the website.

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