Custody Battles Over Unborn Children

Posted by Steven D. Eversole | May 16, 2014 | 0 Comments

Custody battles can take place between unwed parents, post-divorce, or between family members. One complicated scenario involves custody rights over an unborn baby. In a recent case, the father of celebrity Sherri Shepherd's unborn baby is seeking full legal and physical custody. But is this possible? Can a father claim custody rights to an unborn child? The courts have seen a wide range of cases, disputes, and arguments over child custody. Though a father may want to assert custody rights before a child is even born, this is likely to be an uphill legal battle.

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According to reports, celebrity Sherri Shepherd is going through a divorce with her husband Lamar Shelly. The case is even more complicated because it also involves a surrogate mother who is carrying their unborn child. When facing any family legal dispute it is important to remember that every case is unique and has very different circumstances. An experienced attorney is necessary to review the facts of your case and to analyze relevant laws in your favor. Our Birmingham child custody lawyers are experienced in handling even the most complex cases. We will review your case, apply relevant Alabama law, and aggressively fight for your custody rights.

After finding a surrogate for their child, the father filed for legal separation as well as for full legal and physical custody. He could not file for divorce immediately because he did not meet California residency requirements. Reports indicate that the father plans to file for divorce after three months when this residency requirement is met. LA. Superior Court documents indicate that the couple is expecting a baby carried by a surrogate. If successful on this claim, the mother would only get visitation rights. The father has filed documents seeking immediate custody over the child.

In addition to child custody disputes, the parents are also in a dispute over the prenuptial agreement. The father asserts that the prenuptial agreement was invalid because it was based on fraudulent pretenses. Reports did not specify what elements of the prenuptial agreement were in dispute. In regards to the custody dispute, courts have held that no one can assert custody over an unborn child except the mother. Once the child is born, a father, the state, or other vested party can initiate proceedings. Regardless of the facts and circumstances, it is extremely difficult to assert custody rights against a mother unless there is a showing of abuse, neglect or other issues that can cause harm to the child.

This case raises additional complexities because the child is being carried by a surrogate. In the case of Baby M, a famous American court case based on the legal validity of surrogacy, the parents entered into an agreement with the surrogate mother. The surrogate was ingested with the father's sperm. After the birth, the surrogate decided to keep the child and the birth parents sued for custody rights and legal parent rights. The court ruled that the contract was invalid according to public policy. In the end the court award the father custody and the surrogate mother was given visitation rights. In the new case involving Sherri Shepherd, it is unknown whether the surrogate used her eggs or her own. The court could favor the father for legal rights if it follows a similar line of reasoning as In Re: Baby M.

Contact Birmingham Family Law Attorney Steven Eversole at (866) 831-5292.

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama

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