If you are getting married, it is important that you understand what a prenup is and how it can be used to benefit your future self and children. Continue reading to discover whether a prenuptial agreement can include the terms of child custody, and reach out to a Suffolk County divorce attorney to schedule your free consultation today.

What is a Prenuptial Agreement?

A prenuptial agreement, often referred to as a prenup, is a legal contract that two people can enter into before they get legally married. The agreement outlines the division of assets, debts, and other financial matters in the event that the marriage ends in divorce, separation, or death.

Prenups are designed to protect both parties if the marriage ends suddenly or unexpectedly. Because the terms of how financial issues will be handled are already outlined and agreed upon prior to the marriage, it reduces the risk of disputes or miscommunication later on. Divorces and separations can be messy, so preparing for the worst-case scenario before the marriage is often a smart move for both parties.

Can a Prenuptial Agreement in NY Include Child Custody Terms?

While the main focus of a prenuptial agreement is financial arrangements, it can also be used to address other issues like alimony or spousal support. However, child custody agreements are not permitted in a New York prenup.

Even if both parties agree to certain terms or clauses, a New York court has the authority to reject them. Only courts can make final decisions regarding child custody and child support. These arrangements are curated while keeping in mind the best interests of the children at the time of the divorce. The best interest of a child cannot be determined years in advance or before they are even born.

Therefore, if a prenuptial agreement in New York includes a child custody arrangement, it will not be considered enforceable.

How Are Custody Arrangements Made?

Upon a couple’s divorce, the court will evaluate a variety of factors when determining what is in the best interests of the child before deciding who should have custody and what the schedule should look like. Important factors that are considered include:

  • Which parent has been the primary caregiver
  • The child care arrangements that each parent can offer, if they work
  • Which parent offers the most stability
  • Whether there is evidence of drug or alcohol abuse on the part of either parent
  • The mental and physical health of each parent
  • Whether there is evidence that either parent has committed domestic violence against the other
  • Whether there is evidence that one parent has ever abused, neglected, or abandoned the child
  • The financial situation of each parent
  • Each parent’s home environment and whether it is dangerous or unhealthy for the child
  • The educational opportunities that the child would have access to with each parent
  • Where the child’s siblings live, if they have any
  • The court’s observation of the parents’ behavior

The child’s preference, depending on their age and maturity
If the child custody terms outlined in the prenup are determined to be in the child’s best interest, the court may make a decision that reflects that fact. Otherwise, it will be deemed invalid.