Newborns During Divorce

By Beverly Bird

Father and baby sleeping

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Newborns aren’t immune to the effects of divorce, according to the University of Missouri. When their parents feel stressed and worried, they pick up on it and may react negatively. “Parents” magazine indicates that when infants go through divorce, they may develop symptoms of irritability and increased emotion. This doesn’t necessarily mean parents must stay together: The child would still sense their stress. However, when separating and negotiating custody, they should make their infant's needs one of their most important considerations.

Laws Regarding Paternity

Some states, such as Florida, do not permit either spouse to file for divorce when the wife is pregnant. Other states allow a spouse to file, but will not grant a divorce until after the baby is born. These jurisdictions want to make sure a child’s support needs are not overlooked because he is in utero at the time his parents’ marriage is dissolved. However, issues of paternity can arise if parents are living separate lives prior to filing for divorce. In most states, a woman’s husband is legally her baby’s father if she’s married to him when she conceives, or when she gives birth. If he believes he is not the father, he must petition the court for a paternity test to set the matter straight. Otherwise, he'll be liable for child support.

Tender Years Doctrine

Through the 20th century, courts addressed a newborn’s needs in divorce by applying the tender years doctrine. This was a school of thought that said a very young child does better when raised by his mother. In the 1950s and 1960s, "very young" could be as old as 13 years. Most states have abolished tender years language from their legislation as of the time of publication. This doesn’t necessarily mean that fathers are now preferred as the custodial parents of newborns, but rather that judges cannot unilaterally rule for the mother without considering a father’s ability to care equally as well for his baby.

Practical Considerations

Infants are not as resilient to frequent changes in routine as older children are. This can make shared physical custody of a baby difficult. According to Divorce360, the Los Angeles Superior Court prefers that newborns live with one parent, without spending overnights with the other parent, until they are at least six months old. When a mother is breastfeeding and doesn’t want to introduce a bottle to her baby yet, it is impossible for the baby to spend overnights with his father, because newborns need to eat every few hours.


Fathers should still be heavily involved with their newborns during and after divorce. Babies younger than six months old aren’t capable of understanding that their fathers still exist even when they’re not in their sight, according to the University of Missouri. For optimum bonding, a father should spend some time with his infant every other day or so, if not daily. Dad can make it a point to stop by every night after work to care for and play with his infant for an hour or two. However, when parents have an adversarial relationship, the baby will feel the stress when they're together. In this case, Mom can use the time to get out of the house for a little while. She may well appreciate the break. The arrangement won’t last forever, and if a baby has frequent interaction with his father from birth, he’ll make the transition to overnights with him more easily when he’s old enough.