Parents naturally want to do all they can to take care of their children. Sometimes this instinct leads to spouses trying to create contracts about how they will raise their children if they ever divorce. The hope is the family can be spared from a lawsuit if the parents can agree in advance. However, enforceable postnuptial agreements do not resolve issues surrounding children. They are used to define financial rights and obligations. As a general rule of thumb: if it does not deal with property, it does not belong in a postnuptial agreement.
It might seem strange that parents cannot include provisions for raising children in a postnuptial agreement. Every day parents make decisions about their children’s lives: what they eat, what time they go to bed, whether they can go to a friend’s house, etc. The difference is those daily decisions don’t affect the legal rights of the children. On the other hand, child custody, support, and visitation do.
The right to child custody, support, and visitation does not belong solely to the parents. Therefore, a private contract between the parents is insufficient to resolve children’s issues. Instead, the law balances the rights of both of the parents, the children, and the state. Each parent has a right to raise their child. Every child has the right to be raised and to have a relationship with both parents. The state has the right to oversee child rearing because of its interest in protecting children from harm.
A postnuptial agreement cannot eliminate child support payments or establish the amount that will be paid. Child support may seem like a property right since it deals with money. However, the law does not view child support as a financial right. Child support deals with the right of the child to benefit from both parents’ income. States recognize that every parent has the responsibility to financially assist in raising their child to the fullest extent that they are able. The state’s child support guidelines establish the amount of child support that is paid, not the parents.
A postnuptial agreement cannot determine who the child will live with and if the other parent will see the child. Child custody and visitation is determined by the “best interest of the child” standard. There is no exact definition of what “best interest of the child” means. There are many factors. Ultimately, it involves whether the child is in a healthy, stable, and safe environment in which the child’s needs are being met and relationships with both parents are being preserved. A judge must determine the type of custody and when visitation is appropriate in every divorce case in order to ensure that the child is in a good environment. Even when parents agree on custody and visitation, they are required to obtain approval from the judge.
Public policy prohibits spouses from determining child custody, support, and visitation in postnuptial agreements. Children are not a commodity that can be traded between parents and cannot be used as a bargaining tool. If your postnuptial agreement contains provisions for children’s issues, the court may ignore those parts and still uphold the rest of your agreement or the court may invalidate the entire agreement. The best decision is to simply not include unenforceable children’s issues in a postnuptial agreement.