Parentage Prenups and Midnups
| Publication year | 2015 |
Parentage Prenups and Midnups
Jeffrey A. Parness
[Page 343]
INTRODUCTION.................................................................................343
I. SUPERIOR PARENTAL RIGHTS......................................................350
II. CURRENT WAIVERS OF SUPERIOR PARENTAL RIGHTS................355
A. Prenups and Midnups........................................................355
B. Waivers By Other Agreements...........................................358
C. Waivers By Noncontractual Conduct................................364
III. GUIDANCE ON CHILDCARE STANDING VIA PRENUPS AND MIDNUPS...................................................................................367
IV. GUIDANCE ON CHILD SUPPORT VIA PRENUPS AND MIDNUPS .... 369
V. GUIDANCE ON CHILD CREATION VIA PRENUPS AND MIDNUPS ... 372
CONCLUSION....................................................................................374
In July 2012, the National Conference of Commissioners on Uniform State Laws1 approved and recommended that states adopt the Uniform Premarital and Marital Agreements Act (the Act).2 Unlike its predecessor,3 the 1983 Uniform Premarital Agreement Act,4 the Act regulates "premarital agreements and marital agreements under the same set of principles and requirements."5
[Page 344]
While both Uniform Acts speak largely to agreements about property, including money,6 only the Act expressly recognizes there may be agreements on "custodial responsibility."7
Under the Act,8 custodial agreements do not "bind" the courts because "parents and prospective parents do not have the power to
[Page 345]
waive the rights of third parties (their current or future children)" or "to remove the jurisdiction or duty of the courts to protect the best interests of minor children."9 The Act's Comment suggests, however, that while such agreements are not always enforceable,10 they can provide "guidance" to courts.11 Guidance promotes "stability and permanence in family relationships because it allows the intended parents to plan for . . . their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for . . . several years of the child's life."12 Guidance on "custodial responsibility" should flow from premarital agreements
[Page 346]
(prenups) and marital agreements not contemplating separation or dissolution (midnups)—even if no statute on such agreements exists and even if any statute fails to address custodial responsibility.13
The Act implies that there can be guidance within prenups and midnups on future child support for existing and future children.14 It also implies that there can be guidance on future parentage within such agreements to create or adopt children (child creation agreements).15 States implementing the Act should expressly recognize that prenups and midnups can address child support and child creation as well as custodial responsibility.
When might child custody, child support, or child creation promises within prenups and midnups be suitable for prospective and current spouses16 and others? And when might prenups and midnups
[Page 347]
provide "guidance" to judges? This paper suggests that current and future parents and stepparents17 could employ such agreements in premarital, midmarital,18 civil union, and domestic partnership settings19 to provide childcare guidance for post-dissolution proceedings.20 Without such agreements, stepparents have far less standing to seek childcare orders because of the superior parental
[Page 348]
rights of the existing parents, even if the existing parents do not intend to accommodate a child's best interests.21 The paper also suggests that childcare pacts in prenups and midnups can guide other current and future family members, like grandparents, aunts, and uncles,22 who later wish to obtain childcare interests.23
In some states, the law already aids stepparents, grandparents, and other child caretakers in noncontract settings where their earlier acts, such as holding out children as their own, guide their later childcare standing as parents or parental-like figures.24 Prenups and midnups could provide childcare interests for additional child caretakers, such as aunts, uncles, or cousins, who otherwise would have no parental or third party standing to seek a childcare order upon dissolution.25
[Page 349]
Judicial decisions on stepparent, grandparent, and other childcare standing arising from prenups and midnups must always account for public concerns for children's best interests.26 This paper asks how these public concerns may be furthered because it finds that absolute post-dissolution judicial discretion as to who should actually be responsible for childcare, given an earlier custodial responsibility pact, may not fully protect children.27 The paper posits that more definite rules are needed to address who is eligible to attain childcare standing using prenups and midnups, not unlike eligibility rules for formal adoptions.28 These rules would further guide judges who are already guided by custodial responsibility pacts.
As to child support pacts, superior parental rights, and public concerns about children's interests pose fewer problems.29 In general, additional financial support to a child should not negatively impact parent-provided childcare.30 Public policy does not allow money alone—however beneficial to a child—to form the basis for childcare standing.31 Further, as to consideration benefitting the future child supporters, several existing state statutes already declare that promises to furnish child support, growing out of a supposed, presumed, or alleged parent-child relationship, typically do not require consideration.32
[Page 350]
Child creation agreements significantly implicate superior parental rights and other federal constitutional interests (like paternity opportunity interests), as well as public policy concerns.33 Statutes and common law rulings already respect certain child creation pacts involving assisted human reproduction (AHR), with and without surrogates, outside of prenups and midnups.34 This paper suggests that child creation prenups or midnups should also guide the courts.35
Federal constitutional interests significantly limit the breadth of parentage prenups and midnups on future childcare, child support, and child creation.36 Prenups and midnups that address the future childcare of existing children clearly implicate superior parental rights.37 Contracts that involve only one of a child's two parents especially implicate the noncontracting parent's constitutional childcare interests.38 Childcare contracts can also implicate the constitutionally protected familial interests of contracting and noncontracting nonparents and of the children themselves.39
[Page 351]
Prenups and midnups on future child support seem less constrained by federal constitutional interests.40 Yet, substantive due process does limit certain agreements.41
Prenups and midnups that address future parentage creation, whether through formal or informal adoption, assisted reproduction, or otherwise, often implicate both the superior parental rights and familial interests of the contracting parties as well as the interests of others, including surrogates and children.42
While federal constitutional rights undoubtedly constrain parentage prenups and midnups that address childcare, child support, and child creation, the rights have not been fully defined.43 Troxel v. Granville demonstrated childcare pacts' uncertainties.44 In Troxel, six U.S. Supreme Court justices found the State of Washington's third-party child visitation statute was unconstitutional because it unduly interfered with parental rights to direct the upbringing of their children.45 Washington's third-party visitation statute effectively permitted any third party to petition a court to review any parent's decision concerning child visitation under a best interest standard.46 The Troxel plurality of four held the "breathtakingly broad" statute was unconstitutional because it failed to presume fit parents act in the best interests of their children or to give any deference to parental decisions.47 A judicial determination of a child's best interest could not warrant court-ordered visitation when the law accords "no special weight" to parental decisions because the federal constitution
[Page 352]
embodies "a presumption that fit parents act in the best interests of their children."48 The Troxel plurality hinted that nonparent visitation orders would be constitutional when "special weight" is accorded to parental wishes.49 The Court did not, however, discuss the weight that should be accorded to childcare pacts. The Troxel plurality condemned judicial interference with parents any time there was "mere disagreement" regarding a child's best interest.50 The plurality did not expressly find, as the Washington high court did, that a showing of harm or potential harm was necessary to sustain nonparent visitation over parental objection.51
Concurring, Justice Souter focused only on what the plurality characterized as a "breathtakingly broad" statute,52 which he described as authorizing any person at any time to petition for and to receive visitation rights subject only to a free-ranging, best-interests-of-the-child standard.53 He chose to "say no more,"54 and thus did not
[Page 353]
comment on the constitutionality of a more narrowly drawn statute or on any necessary "special weight" or "presumption."55
Justice Thomas in his concurrence simply noted, "Washington lacks even a legitimate governmental interest—to say nothing of a compelling one—in second-guessing a fit parent's decision regarding visitation with third parties."56 However, a parent's earlier agreement to share visitation was not at issue.
The three dissenters filed separate opinions. Justice Stevens stated...
To continue reading
Request your trial