Can a prenuptial agreement decide child custody?

Say that you and your wife, before you married, drew up a prenuptial agreement that addressed several areas. One of them was child custody, and you agreed for your wife to have custody of any children from the marriage. You would have liberal visitation.

However, you and your spouse are about to divorce, and you would like joint custody. Are you out of luck due to what the prenuptial agreement says? Good news: No.

Best interests of the child

Custody and child support agreements need to be made with the best interests of the child in mind and are issues of public policy. Prenuptial agreements are out of date by the time a couple splits up, and the custody arrangements made in them may not reflect the best interests of the child. It could even be that a parent who pushes for custody in a prenuptial agreement is not interested in custody by the time divorce talks roll around.

In Pennsylvania, it is legally permissible for a judge to ignore any child support and child custody sections but to enforce the rest of the agreement, assuming it is legally sound.

Other child-related issues in prenuptial agreements

There could be other issues related to children in your prenuptial that may or may not be enforceable. For instance, if your agreement spells out that one parent always gets the final say in major decisions concerning the child, that is probably not enforceable. Similarly, if the agreement calls for the couple to have only X number of children or to have one boy and two girls, that is not enforceable. The same idea applies to an agreement stating the mother must lose her baby weight within a certain time frame after a child is born.

Children from a prior relationship

A prenuptial agreement should be able to protect children from prior relationships. For instance, your fiancee can agree to give up her rights to your house so you can keep that asset for your children.

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