Do Fathers Have Child Custody Rights Before the Birth of the Child?

A New Jersey Court recently tackled an issue which arises sometimes early on in custody cases.  A presumed father wanted to be present for the birth of his child.  The mother said no, and the court ruled in her favor in the first case of its kind to be litigated in the United States. The court focused on the privacy rights of women which have been recognized in Supreme Court cases involving a woman’s right to choose.

The court began its analysis under Roe v. Wade which found that women have a fundamental right to privacy that includes the right to control their own bodies during pregnancy. This was further spelled out in Planned Parenthood v. Casey when the Supreme Court held that it was an undue burden on the mother to require spousal notification before an abortion.  While the Casey Court recognized a father’s interest in his wife’s pregnancy, the wife’s interest prevail because she is the one, prior to birth, who is directly and intimately affected.

In the present case, the father and mother were unmarried and no longer engaged in a relationship at the time of the child’s birth.  The father wanted to be present in the delivery room.  However the mother asserted her right to privacy during childbirth and told the father he would not be permitted in the delivery room.  The court applied the reasoning in Roe and Casey in finding that a mother’s right to privacy trumps the father’s rights, even more so when the parties are unmarried. The full opinion can be read here.

What should you do if you are facing a similar situation?

Because there is little to no legislation or case law on this issue, it is unclear whether Pennsylvania courts would reach the same conclusion.  You should talk with a family law attorney experienced in child custody matters who can help you reach the best possible result.