If we divorce before our child is born, can I still get custody?

Attorney Brad CunninghamQuestion:

My wife is pregnant with our first child due to be born later this year. She wants a divorce. Does the fact that my child is not born yet mean I will not be entitled to have some form of child custody?


First let me preface my answer by stating that I am licensed to practice law in Oklahoma and not licensed to practice law in Mississippi, so I am unable to give you any specific advice regarding your question because I am not familiar with your state’s statues and rules. However, I can give you a general response to your question, although for specific advice you need to speak to an attorney licensed in Mississippi.

Although your wife may want divorce that does not mean she can prohibit you from being the child’s father and being involved in your daughter’s life.  Until there is a court order stating otherwise you and your wife have equal rights with regards to your daughter.

The lone fact that your child is not born yet does not mean you will not be entitled to have some form of custody with her, including possibly joint custody.  In most states when determining custody and visitation the Court will consider the child’s “best interests.”  The definition of “best interest” and the areas of consideration vary from state to state, but usually this means having both parents play an active role in a child’s life.   Here is a general list of what most Courts consider in determining the best interest of the child (some of these may not apply given your daughter’s age):

  • The love, affection, and other emotional ties existing between the parties involved and the child.
  • The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
  • The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care.
  • The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
  • The permanence of the existing or proposed home or homes.
  • The moral fitness of the parties involved.
  • The mental and physical health of the parties involved.
  • The home, school, and community record of the child.
  • The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
  • The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
  • Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  • Any other factor considered by the court to be relevant to the particular family.

An experienced domestic relations attorney will know how to advocate for joint or sole custody on your behalf.


Bradley K. Cunningham is a Senior Attorney in the Tulsa, Oklahoma office of Cordell & Cordell where his primary practice is exclusively in the area of domestic relations. Mr. Cunningham is licensed in the states of Oklahoma and Texas. 

After growing up in Tulsa, Mr. Cunningham moved to Arkansas where he received his undergraduate degree in Accounting from Harding University in Searcy, Arkansas. He then returned to Oklahoma and received his Juris Doctor from the University of Oklahoma.

End of Content Icon

Leave a Reply

Your email address will not be published. Required fields are marked *