Can Child Custody Be Addressed in a Prenuptial?

Prenuptial agreements have the ability to override state law when it comes down to issues of alimony, debt distribution and properties in a divorce.

The one thing it cannot do is provide the solution to any issues relating to children who will be born to the marriage.

Best interest of the child

All courts base custody decisions on the best interests of the child. A prenup won’t be able to address custody as you will have no way of predicting what will serve your child’s best interests at an unspecified point in time should you divorce.

One parent might develop a drug or alcohol dependency over the years, or other circumstances may occur that would render them an unsuitable custodial parent. Judges are not bound by an advance agreement to place custody with a specific parent if it’s not in the child’s best interest.

Child support

By extension, the prenup will not provide any child support. If you have no way of knowing who will be the custodial parent, you cannot know which spouse has the responsibility of paying support to the other.

Furthermore, the child’s support is not the parent’s to negotiate over – it actually rightfully belongs to your child.