Divorce and the Delivery Room

Just a couple of years ago—for those of you who stoutly refuse to follow the tabloid grist mill—former “American Idol” producer and judge Simon Cowell became involved with Lauren Silverman, the wife of his (former) close friend Andrew Silverman. That was one obvious problem. The other? Lauren became pregnant while still in divorce proceedings with her husband.

Cowell chose to stay away while her divorce proceedings became final, and she eventually gave birth to a baby boy this past Valentine’s Day.

While “pregnancy” and “divorce” are two words not commonly placed together, it’s a realistic and far too common situation for many married couples. Though a divorce during a pregnancy is allowed in California, some states will not allow a divorce while pregnant at all. And divorcing while pregnant in California is still not without its complications.

We spoke with Kayla Horacek, partner at the Pasadena law offices of Donald P. Schweitzer, a certified family law specialist and accredited minor’s counsel, about this complex issue.

Explained Horacek, “Obtaining a summary dissolution, which is typically less expensive and quicker to process than a regular divorce, is prohibited under California state law. A pregnant woman or father-to-be will have to file a normal divorce and wait until after the baby is born before the divorce can be finalized, even if it goes beyond the typical six-month waiting period, mainly due to paternity concerns.”

Naturally, those paternity concerns and rights will usually become the main focus of the case. If the couple was married at the time of conception, then it is presumed that the husband is the legal father of the baby; but if the couple is divorcing because of an affair, a paternity test will be ordered after the baby is born.

“Let’s assume the husband is the legal father of the baby,” said Horacek. “There are several issues that need to be resolved after the baby is born. For example, child support payments, daycare costs, and visitation schedules.”

But even before the birth of the baby, there is still the matter of the delivery itself. Is the husband welcome? Does he have a right to be there? How can it affect the outcome of the divorce when it comes to trial?

“In the state of California,” explained Horacek, “I think you would be hard pressed to find a hospital that would not honor the mother’s request to not have the biological father in the delivery room. But, while it’s the mother’s right to exercise who can and cannot be part of the delivery process, there are ramifications the mother must consider when excluding the other parent.”

“In fact,” she continued, “I had one client who, at the time of her child’s birth, was separated from the father, and decided against having him in the delivery room because she found his presence to be stressful. The father later used that action against her in the family court proceeding, and attempted to paint her in a negative light claiming that the mother had alienated him from the child’s life immediately upon birth.”

So what are the rights of the father in the delivery room and immediately after?

For the father, there is a way to combat being legally excluded from the delivery process. A family law attorney can request custodial orders immediately upon birth, which would include labor and delivery. While the mother will most likely be given immediate rights to the “Golden Hour, “the first few minutes after delivery when the mother and newborn bond through skin-to-skin contact, the father can also request bonding time after delivery through this custodial order.

After the child is discharged from the hospital, the father must keep in mind that the court will side with what is in the best interest of the child, and since infants need time to bond with a primary caregiver and won’t react well to sudden change, visitation for fathers can be tricky for the first several weeks or even months, especially if the mother is breastfeeding.

For example, overnight visits will not be immediately possible for the father, but he will be granted shorter daytime visits with the mother nearby for nursing, as needed. Ideally, the child custody goal would be to foster a relationship with the father so the child feels comfortable going on longer visits, once breastfeeding has stopped or the baby is able to take a bottle.

Divorcing while pregnant is a messy, complicated issue, but like so many matters of family and the law, a cool head and a little common sense can ease the stress level for everyone involved.

A good start might be not becoming involved with the spouse of your best friend.

Kayla Horacek, Partner, Law Offices of Donald P. Schweitzer, is a certified family law specialist and accredited minor’s counsel. In addition, Ms. Horacek was formerly a behavioral technician for children with autism. The Law Offices of Donald P. Schweitzer are at 201 S Lake Ave #800, Pasadena. (626) 683-8113. www.Pasadenalawoffice.com.