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Can You File for Custody of an Unborn Child?

Currently (as of 2015), the answer is no.  The NC child custody statute says a case may be filed for a “minor child.”[1] That term is defined elsewhere as “any person who has not reached the age of 18 years.”[2]  In effect, while pregnant, the mother has physical and legal custody by default.  The only reference to an unborn child in our custody statute is when a convicted sex offender’s actions lead to “conception” of the child, in which case he cannot make a claim for custody.[3]  If the married parents of an unborn child divorce before the child is born, it will not “cause any child in esse or begotten of the body of the wife . . .  to be treated as a child born out of wedlock.”[4] The unborn child’s legal status is protected. Paternity laws are no help to someone trying to assert parental rights before a child is born because they are “Civil Actions Regarding Children Born Out of Wedlock.”[5]

Unborn Children and Adoption

NC adoption laws define a minor as “an individual under 18 years of age who is not an adult.” When a pregnant woman places a child for adoption in NC, in certain cases, she may ask the court to rule on whether the father’s consent to the adoption is necessary. This pre-birth ruling may be requested any time after six months have passed since conception.  The mother, adoption agency or adoptive parents chosen by the mother may request this ruling on the father’s right to consent to the adoption, but a father cannot.  Unless he responds to legal notice about the matter, he must wait until after a child is delivered to exercise his parental rights.[6]

What About Child Abuse or Neglect?

Child Protective Services (CPS) laws “do not address abuse or neglect of the unborn child. The definition of a juvenile includes . . . children from birth to eighteen years.” But, federal laws require CPS to investigate when there are reports of “children born with a positive toxicology for illegal substances.”[7]  CPS must also wait until a child is born before acting. Then, their duties to protect the child begin.

Unborn Victims of Crimes

The criminal law defines an unborn child as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.”[8] A statute addressing criminal abortions uses the Biblical phrase “quick with child” when describing the illegal procedures used when someone intentionally uses drugs or instruments to “destroy such child.”[9]  Doing so is a felony, as is intentionally acting with the intent to cause a woman to miscarry, or to injure or destroy the woman.[10]  Concealing the “birth of [a] child . . . by secretly burying or otherwise disposing of a dead body of a newborn child is a felony.”[11]  But, the criminal law also creates an exception to these felonies for abortions performed during the first 20 weeks of a woman’s pregnancy.  Those abortions are presently legal in NC, and are addressed by A Woman’s Right to Know Act.[12]

Unborn Children’s Rights in Lawsuits

When there is a lawsuit that involves potential ownership or distribution of property, the court may appoint a guardian ad litem (GAL) to represent the unborn child.  Examples of such lawsuits include cases about wills, trusts, or contracts.  The child is served with the lawsuit when his or her GAL is served by sheriff, and the ruling on the case stands despite the fact that the child had not been born when the lawsuit was filed.

[1] NCGen. Stat. §50-13.1

[2] NC Gen. Stat. §48A-2

[3] NCGen. Stat. §50-13.1

[4] NC Gen. Stat. §50-11

[5] NC Gen. Stat.  §49

[6] NC Gen. Stat. §48-2-206

[7] Online Manual of NC Dept. of Health and Human Services, Div. of Social Services.

[8] NC Gen. Stat. §14-23.1

[9] NC Gen. Stat. §14-44

[10] NC Gen. Stat. §14-44

[11] NC Gen. Stat. §14-46

[12] NC Gen. Stat. 90-21.80

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