Why can’t a prenup address child custody?

 Posted on May 19, 2020 in Divorce

You’re getting married, and you decide to use a prenup to protect your assets and/or protect yourself from your spouse’s debt. If you get divorced, you know how things are going to play out financially.

During this process, you bring up children. You know that you want to have a family in the future. You do not want to live with the fear that a divorce could mean your children go live with your ex, and you never see them. You ask if you can put any details about future child custody rights into the prenup, and you find out that you cannot. Why is this?

While the court does consider the specifics of every individual case, they have one main goal that they always focus on: determining what is in a child’s best interests. This is even more important than giving the parents what they want. If the court decides that some other solution would be better for the children, then it works toward that end.

Those future children are people, after all, and they have rights. If a prenup could make it so that they wouldn’t get the best living situation or would get cut off from a parent against their will, that would violate their rights. The parents can only use the prenup to make decisions for and about themselves, not for or about other people. For this reason, children are exempt and nothing regarding custody will hold up in divorce court.

A prenup certainly can be useful. Just make sure you know what it can and cannot do and what steps you need to take when drafting it.