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Custody of Unborn Children in Georgia

Can you file for divorce while you or your spouse is pregnant with a child of the marriage? Of course you can - but watch out! Under Georgia law, there are serious consequences when parents enter into a custody or child support arrangement for a child that has not yet been born.

Georgia courts can award child support or create other obligations that might be difficult, or impossible, to modify after the child is born. One example can be found in the case of Roberson v. Fooster, 234 Ga. 444 (1975), in which a father sought to terminate a child support obligation, contending that the subsequently born child was not his. The Court declined to terminate the child support based on the doctrine of res judicata. The Court held that the child's paternity was an issue to be decided during the divorce (Boone v.Boone, 225 Ga. 610(1) (1969)). Since paternity was not challenged by the father at that time of the divorce, it could not be asserted later as grounds for modification or termination of the child support obligation.

In another case, Daughtry v. Daughtry, 218 Ga. 557 (1963), a father challenged a trial court's order holding him in contempt of his divorce decree and requiring him to pay alimony and child support on a child who had not been born at the time the divorce decree was entered. The trial court overruled his motion to dismiss the contempt petition, which had generally alleged a lack of jurisdiction over the unborn child. However, the divorce decree included the language, "[t]he matter of support for said child after its birth is not now decided, but left in the breast of the court." The Supreme Court affirmed the trial court's contempt order requiring the father to pay alimony and child support, even though there had been no specific child support obligation in the divorce decree. Although the case was decided on other grounds, in its opinion, the Court pointed out that the father had never challenged the mother's right to receive support for the child, nor questioned the authority of the trial judge to award alimony or child support.

If custody or support of an unborn child is at issue in your divorce case, it may be best to wait to address those issues until the child is born. At the very least, you should discuss this issue with an experienced Georgia family law attorney before entering into any agreement.

By Savannah Murphy, Associate Attorney, Meriwether & Tharp, LLC

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