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Prenup and child custody

Can a Prenuptial Agreement Determine Child Custody in Pennsylvania?

Prenuptial agreements are contracts that couples sign prior to marriage. A prenuptial agreement also called a “prenup,” provides that, in the event of divorce, certain issues which are normally resolved after divorce will be resolved by the terms of the written agreement. Prenups are useful in deciding how the marital property and debts of each spouse will be resolved. Prenups are also used to determine whether either spouse will be entitled to alimony and the terms of an alimony award.

Prenuptial agreements normally cannot determine which party has legal or physical custody of their children. Prenuptial agreements also cannot determine how much child support one party should pay to the other. There is a reason why child custody and child support cannot be made part of a prenuptial agreement. Decisions about custody and child support must be determined based on what is in the best interests of the children – not the spouses.

Judges always have the authority to determine what is in the children’s best interests, even when parents reach an agreement before they marry, during the marriage, or after the divorce.

Custody agreements in Pennsylvania determine legal custody – which parents can make decisions about the child’s educational needs, religious upbringing, and medical care. Physical custody decisions determine where the child resides each day of the year and the responsibilities of the custodial parent about feeding, clothing, disciplining, and taking care of the child. Custody decisions are normally set forth in a parenting plan. The plan determines such specifics as:

  • When each parent will have physical custody of the child
  • The right of the other parent to visitation with the child
  • When and how the child will be transferred to the other parent
  • The right of the non-custodial parent and the child to communicate with each other
  • How custody disputes will be resolved
  • Other relevant custody issues

Many spouses during the divorce process are able to reach an agreeable parenting plan. These agreements may be reached on their own, with the help of their lawyers, through mediation, and through the collaborative divorce process. The family law judge assigned to the divorce case does need to review and approve the parenting plan to ensure that the child’s best interests are being protected.

Legally, spouses cannot create their own parenting plan/custody agreement before they marry. There are also many practical reasons why, even if the spouses agree to confirm an understanding in the prenuptial agreement about custody, that that family judge will not confirm custody provisions set forth in a parenting plan:

  • The soon-to-marry couple may already have children, or they may have their first children after they marry.
  • The children will age from the time of the agreement through the time of the divorce. This means their needs and their relationships with the parent will continue to change. There is simply no way spouses can predict their children’s future needs .
  • Children may develop special educational or health needs after the prenuptial agreement is signed.

Spouses can decide on their own during the divorce to reaffirm any custody agreement or parenting plan they agreed to prior to the divorce. There is no requirement though that either spouse/parent honor any custody agreement or parenting plan entered into before the marriage. If the spouses agree to the custody terms/parenting plan set forth in the agreement (after they divorce), the family judge must still review this new agreement to determine if the agreement is in the child’s best interests.

As an aside, prenuptial agreements can generally determine which parent has custody of a pet since pets are treated as property, not children.

A few practical considerations

The financial agreement (property division and alimony awards) often plays an indirect role in the final custody decision. For example:

  • The prenuptial agreement may determine which spouse keeps the marital home or whether the marital home is sold. Some factors that affect child custody include where the children will live and the proximity of the parents.
  • The financial resources of each spouse (determined by the equitable division of provisions of the prenuptial agreement and the alimony provisions of the prenuptial agreement) affect custody too. While family judges do not decide custody based upon which spouse has more money, the ability of each spouse to provide child-care services, transport the child, the level of conflict between the spouses, and many other financial factors can indirectly affect the child custody and parenting plan decisions.
  • The ability of the spouses to take time off from work affects child custody and parenting plan decisions – especially when the children are of preschool age.
  • An alimony agreement may provide for funds for the spouse who earns less to attend school, which can affect their time with his/her children.

A prenuptial agreement may also allocate some assets for children of a prior marriage, which can affect child custody decisions regarding the children of both spouses.

Prenuptial agreements are often used when one or both spouses have significant wealth prior to their marriage, or when either spouse was previously married. Spouses can also enter into postnuptial agreements regarding property division and alimony. Decisions about your children should be current – based on the relationship of the parents to their children at the time of the divorce.

To discuss how child custody works in Harrisburg, your rights, your children’s rights, and the effect of prenuptial agreements, call Statt Law today at (717) 537-0928, or filling out our contact form to schedule an appointment.

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