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Pregnancy and Divorce

Posted by on in Divorce
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b2ap3_thumbnail_pregnancy-divorce.jpgPregnancy can be a time of great joy for couples, but it can also be a time of tremendous stress. What happens if a couple gets a divorce (or is in the process of divorcing) while the wife is pregnant? There are many unique legal issues raised under these precarious circumstances.

 

What if I don’t believe I am the father of the child?

In New Jersey, a child born to a married couple is presumed to be the biological child of the father. Even if the husband is convinced the child is not his, it may be difficult to overcome the presumption that the husband is the child’s father. If the husband has reason to believe the child is not his, he would have to wait until the child was born to obtain a DNA test and then make an application to the Court asking to be relieved of any financial obligation to the child. If the husband does not have access to the child after he or she is born in order to conduct a DNA test, the husband will have no choice but to make an application to the Court requesting that a DNA test be ordered. This type of relief is not granted lightly. Even if the husband provides evidence of why he believes the child is not his, a Judge may not necessarily allow DNA testing to proceed.

Do I have to allow my ex-husband (or soon-to-be ex-husband) in the delivery room?

Unfortunately, there is no definitive answer to this question. But, it is very unlikely that a New Jersey court would compel a woman, over her objection, to allow her ex-husband (or soon-to-be ex-husband) in the delivery room. In Plotnick v. Delluccia, a case of first impression in New Jersey, the Superior Court in Passaic County determined that the un-married father of a baby could not be present in the delivery room over the mother’s objection. The Plotnick Court found that the mother’s constitutionally protected privacy interest outweighed the father’s interest in being in the delivery room. The parties in the Plotnick matter were unmarried and the rulings in Plotnick are not binding outside of Passaic County. However, it is likely that a court faced with similar issues would look to the reasoning in Plotnick, and even to U.S. Supreme Court rulings, in deciding the matter in favor of the mother.

Can I file a Motion before the child is born for the Court to establish a parenting time schedule?

It is unlikely that a court would enter an order for a post-birth parenting time schedule before the child is actually born. The New Jersey custody statute (N.J.S.A. 9:2-4) requires that a court conduct a “best interest” analysis when considering an application for parenting time. Analysis of all of the required factors cannot occur if a child has not yet been born. As indicated in Plotnick, the plain and ordinary meaning of the custody statute speaks to a “child” and not a “fetus”. Essentially, the issue of a parenting time schedule prior to the birth of a child, as important as it may be, is not “ripe” for judicial review.

 

 

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Guest Thursday, 16 August 2018