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Is a Pre-Birth Custody Agreement Possible?

When two parents are not married to each other, they will need to establish custody of their child. If the two are living together, then any custody arrangement would be essentially irrelevant since both parents are in the same house with the child. But what happens if your relationship has ended before the birth of your child? In that case, you might negotiate a pre-birth custody agreement.

In South Carolina, unmarried parents always have the right to divide custody between themselves. This empowers parents to come up with a parenting plan that they are both comfortable with. When parents have open lines of communication, they can often negotiate a custody agreement with only the assistance of lawyers. When relations have broken down, parents often benefit from working with a mediator to help hammer out an agreement.

Custody is usually decided after birth. But an unmarried man might want to get custody before birth to establish his paternity. Please contact Surasky Law Firm to talk with our Aiken, SC family law attorney about reaching a custody agreement. We can help.

Why Would You Establish Custody Before Birth?

One common reason is that you are afraid the other parent will quickly move with the child, thus denying you access. If you are the father, you might worry the mother will pick up and go soon after giving birth and not provide any notice of where she is headed. Likewise, a mother might worry that if she voluntarily lets the father see the child, then he’ll abduct it.

Some men might also be afraid that the mother will put the baby up for adoption before they can establish their rights. A man can prevent this from happening by voluntarily agreeing to paternity or registering as the father.

Establishing Paternity

An unmarried man can sign a Paternity Acknowledgement Agreement before birth. When both parents sign, the law presumes the man is the father and his name goes on the birth certificate. If the mother tries to split town with the baby, the father has some legal recourse.

If you suspect you fathered a child, you can also register at the Responsible Father Registry. You do not need the mother’s permission to register. This registry doesn’t automatically make you the father. It does, however, require that you receive notice if the mother tries to put the baby up for adoption or if anyone tries to terminate your parental rights. You can then take legal steps to establish custody.

Negotiating a Custody Agreement

Parents can start negotiating a custody agreement at any time, even before birth. There are many considerations, such as:

· Where each parent will live after the baby’s birth

· Which parent will have primary custody

· When each parent will have physical possession of the child

· If the parents live close together, whether they will have joint physical custody

· Whether the parents will each have a say in important decisions, such as the child’s medical care and education

· How parents will decide disputes regarding the child, such as whether to vaccinate or where to send the child to daycare or school

· How parents will transport the child back and forth if the parents are no longer living together

You should know that the plan you put in place now, before birth, will probably need to change in the future. Parents might move over the next decade, and children get involved with friends and extracurricular activities as they age. Nonetheless, having an initial plan in place helps make things easier.

Finalizing Custody After Birth

You probably can’t finalize a custody agreement until birth. A judge will need to approve a custody arrangement and incorporate it into a court order. That gives you legal rights if the other parent refuses to allow you to see your child or oversteps their boundaries. For example, you might file a legal claim to enforce custody. The judge might hold the other parent in contempt if they refuse to let you have possession of your child. Do not overlook the importance of getting judicial approval of your custody agreement.

An attorney can file a motion in family law court requesting this approval. Generally, there’s nothing to worry about if you and the other parent both sign off. If the agreement looks to be in the best interest of the baby, then a judge will give the green light in most cases.

Should You Draft an Agreement Before Birth?

There are advantages to taking steps before a baby is born. First, many parents feel overwhelmed in the first year, which means you might have little energy to work through the details of a custody agreement. Do it before birth so it receives your undivided attention. Then you can settle into raising your child as a new Mom or Dad without dealing with legal issues.

Second, having an agreement allows parents to hit the ground running. You can also put a child support order in place, so that will be in effect at birth as well. Child support is a critical source of compensation.

However, there is one reason to wait: you might have doubts whether you are the father. That’s perfectly normal. In fact, recent statistics show that about 25% of men who take a DNA test in a paternity dispute turn out not to be the father.

Men should not admit in court that they are the father unless they are 100% certain. That might mean waiting until birth and then asking for a DNA test to make sure. Until then, you won’t have parental rights, but you also will not have parental responsibilities, like child support.

Contact Surasky Law Firm

Creating a custody agreement is a time-consuming endeavor. There are many considerations, and we have only scratched the surface in this article. Please call our family law attorney in South Carolina to schedule a meeting to go into greater depth about what issues you need to resolve in a custody agreement. Our firm has attended many mediation sessions and drafted numerous custody agreements. We can also represent you in a paternity action, if necessary.


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