Thinking Ahead: Pre-Birth Custody and Visitation


When parents aren’t living together as a child’s birth approaches, the family may benefit from having pre-birth orders spelling out what will happen at the hospital and beyond.

Pre-birth orders sought under California’s Uniform Parentage Act (UPA) (Fam C §7633) help preserve a calm environment for the child’s arrival and keep the hospital from having to play referee between the parents. A 2006 amendment to Fam C §7633 authorizes entry of pre-birth parentage judgments, provided that enforcement is stayed until the child is born.

Pre-birth orders can

  • allocate authority for medical decisions starting from birth,
  • ensure that both parents have a chance to hold the baby and enjoy opportunities for bonding, and
  • include a plan for the baby’s care on release from the hospital.

When a baby is premature or has serious medical problems after birth, there may not be enough time to get emergency court orders. Pre-birth orders may also be invaluable to ensure that a father, for example, has a chance to see and hold a baby who may not survive.

If you’re representing the father, deciding whether and how to raise the question of a pre-birth parenting plan requires balancing risks. Take great care to ensure that any negotiations, mediation, or litigation during pregnancy is conducted in the most gracious, respectful fashion possible under the circumstances. But without an order, an expectant father may not even know when the mother goes into labor or when his child is born.

Pre-birth custody and visitation orders can also benefit people other than an unwed father. They’re being used by same-sex couples and other non-traditional family relationships when there’s a need to establish parentage before birth. For example, in Kristine H. v Lisa R. (2005) 37 C4th 156, the California Supreme Court held that a trial court had subject matter jurisdiction under the UPA to enter a pre-birth parentage judgment recognizing a same-sex couple as parents and awarding them joint legal and physical custody of their unborn child.

The UPA can also be used to create pre-birth orders in surrogacy arrangements. Pre-birth orders in surrogacy cases may require awarding legal and physical custody to the intended parents. See Marriage of Buzzanca (1998) 61 CA4th 1410. Pre-birth orders can be used in conjunction with the surrogacy agreement.

It’s never too early to plan smooth child custody and visitation arrangements. For more information to create parenting plans that work for everyone, turn to CEB’s California Child Custody Litigation and Practice, chapter 4.

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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