7 Child Provisions, Other Nonfinancial Provisions, and Provisions Governing the Ongoing Marriage, Marital Misconduct, and Grounds of Divorce

• Library: Premarital Agreements: Drafting and Negotiation (ABA) (2017 Ed.)

7 Child Provisions, Other Nonfinancial Provisions, and Provisions Governing the Ongoing Marriage, Marital Misconduct, and Grounds of Divorce

§7.01 Overview

This chapter addresses child provisions and certain nonfinancial agreement provisions, including provisions regarding marital misconduct and grounds of divorce.

Provisions regulating the parties' personal rights during the ongoing marriage are not otherwise addressed in this book. The tension between the state's interest in preserving and protecting marriage and the private right to contract is quite apparent when it comes to provisions of an agreement that purport to govern the parties' personal conduct, living arrangements, or other nonfinancial matters during the marriage. Courts are ill equipped to interfere in matters relating to the ongoing marriage and are generally reluctant to do so.¹ The Uniform Premarital Agreement Act (UPAA) permits parties to a premarital agreement to "contract with respect to any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty."² Thus, "subject to the public policy limitation, an agreement may provide for such matters as the choice of abode, freedom to pursue career opportunities, upbringing of children and so on."³ However, "no special provision is made for enforcement of provisions of a premarital agreement relating to personal rights and obligations."⁴ In sum, couples may wish to include such provisions in a premarital agreement, but, with few exceptions, the parties will be left to themselves to enforce them.

§7.02 Parentage, parental rights, and child Rearing During Marriage and After Divorce

(a) Custody of Minor Child After Divorce or Dissolution

Statutes and case law uniformly preclude parties to a premarital agreement from contracting to divest a court of authority to make or modify custodial arrangements for a minor child upon separation or divorce.⁵ Parties may wish to have the agreement state their intentions in this regard. For example, they may wish to acknowledge their intent that they will have joint legal or shared physical custody of an existing or an unborn child. Such a provision will not bind a court in a future custody dispute.⁶ However, it will generally be severable from provisions regarding property and spousal support; its unenforceability will not affect the validity of the agreement as a whole.

(b) Religious Upbringing of Children

In the early part of the twentieth century, courts generally upheld marital agreements regarding the religious upbringing of an unborn child. The right of a parent, particularly the father, to raise children in a chosen religion was held to be almost sacrosanct.⁷ More recently, as interfaith marriages have increased, courts have become reluctant to choose one parent's religion over the other's. After the Supreme Court decision in Wisconsin v. Yoder,⁸ state courts were compelled to recognize the rights of both parents to raise their children in their own faiths.

Parties may wish to agree in advance about the religious upbringing of an existing or unborn child. However, absent a showing of substantial risk of harm to a child, a court will not enforce that agreement at divorce so as to exclude a parent from indoctrinating the child in a different religious faith.⁹ As the Pennsylvania court in Zummo v. Zummo¹⁰ observed, parents in an intact family make decisions about religious upbringing on an ad hoc basis without state intervention. State intervention is permitted in such decisions only on a showing of harm. State intervention in religious upbringing decisions is no more appropriate after a divorce.¹¹ In rejecting enforcement of a premarital agreement to raise a child in a particular religion, the court in Zummo cited the vagueness of such an agreement, the risk it would excessively entangle the courts in religious matters, and most significantly, the right of all persons to "doubt, and to change their religious convictions, and to expose their children to their changed beliefs."¹² The court went on to say:

[I]t is also generally acknowledged that it would be difficult, if not impossible, for an interreligious couple engaged to be married to project themselves into the future so as to enable them to know how they will feel about religion, if and when their children are born, and as the children grow; and that it would be still more difficult for such a couple to attempt to project themselves into the scenario of a potential divorce after children were born, in order to accurately anticipate the circumstances under which religious upbringing agreements would be enforced if such agreements were given legal effect. . . . Consequently, while religious upbringing agreements may serve an important and beneficial purpose by promoting careful consideration of potential difficulties prior to marriage, and also may carry moral weight and religious sanction, parties entering into such agreements generally will not be able to anticipate the fundamental changes in circumstances between their prenuptial optimism, their struggles for accommodation, and their ultimate post-divorce disillusionment. . . . ¹³

Courts in a number of states have held premarital religious upbringing agreements unenforceable insofar as such an agreement precludes a parent from exposing a child to beliefs contrary to those of the faith in which the parties agreed to raise the child.¹⁴ Only where there is evidence of substantial risk of actual, demonstrable harm to an existing child have courts limited a parent's right to expose a child to that parent's religious beliefs and practices. Typically, such a limitation has been imposed when a child has developed a religious identity that is being threatened by a parent's conduct.¹⁵ Courts shrink from interfering in religious upbringing disputes, even when the family unit has fallen apart, as where parties have separated, except in extreme circumstances. Not surprisingly, therefore, they are even less likely to interfere in such a dispute while the parties are still living together. Kilgrow v. Kilgrow¹⁶ is a rare case where parties to a premarital agreement specifying religious upbringing who were still living together sought court intervention. The court refused to get involved, essentially telling the parties they had to settle the issue themselves.

(c) Parentage, de Facto Parenthood, and Parental Rights

Many same-sex couples intend to make children a part of their family, or may already have done so, and they may wish to establish legal parentage in both partners. The discussion below is concerned with contract terms that may be appropriate to carry out this objective, recognizing that a contract alone may not be sufficient to fully protect both parties and their children. This is distinct from the question of a court's authority to resolve a dispute between parents regarding allocation of time and decision-making authority incident to dissolution. The rapidly developing law regarding the rights of de facto parents upon dissolution is beyond the scope of this book. Same-sex couples who choose to enter into a premarital or postmarital agreement may wish to foreclose litigation of de facto parenthood in favor of contractual terms that, to the extent permitted by law, predetermine their parentage rights. Some agreement terms parties and counsel may wish to consider include:

• A provision that a biological or adoptive parent will participate in a second parent adoption, if permitted by state law, so as to make his or her partner an adoptive parent;
• A provision that a biological or adoptive parent will participate in a court proceeding for entry of a consent joint custody order during the marriage so as to create custodial rights in both parties;¹⁷
• A provision that both parties will be financially responsible for any child they agree to bring into their family during the marriage and in the event of dissolution;
• A provision for co-parenting of a child born to or adopted by either spouse so that the other spouse can be considered the de facto parent;¹⁸ and
• When a party already has a child, they may wish to consider some of the same options so that a spouse will have parental rights in the event of death or dissolution.

In considering appropriate terms, counsel should give some thought to whether the agreement should include terms requiring a written consent of both parties before they become joint parents inasmuch as parenthood carries financial obligations. Moreover, once parentage is created, the other parent cannot be divested of his or her parental rights simply because the parties are no longer a couple or a parent decides that the other parent is unsuitable.

(d) Disposition of Stored Embryos

Parties who intend to use assisted reproductive technology to create a family may wish to include terms in a premarital or postmarital agreement addressing their rights to stored embryos in the event of a separation or divorce or the death of one party. Most of the cases addressing questions of enforcement of a contract regarding disposition of stored embryos have involved a pre-implantation contract with an IVF clinic.¹⁹ The discussion here is concerned with provisions of a premarital or postmarital agreement that may allow a spouse to use an embryo after a separation or divorce or the death of the other spouse or may preclude him or her from doing so. Courts have taken several approaches to resolving disputes over disposition of embryos after a marriage has broken down: "(1) the contractual approach, (2) the contemporaneous consent model, and (3) the balancing test."²⁰ Courts adhering to the contractual approach hold parties to the contract they signed prior to undergoing IVF as to disposition of embryos.²¹ By contrast, a Massachusetts case held that a spouse may withdraw consent to implantation under an IVF clinic contract,²² and a New Jersey court has employed a balancing test...