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-I will get an attorney don't need to make the recommendation again

-I understand that prenups/postnups can't negotiate custody (best interests of child)

-But lets say a couple drafts a letter that makes clear that its not a contract, not binding, but is intended to be admissible as evidence* on the issue of custody and what is in the child's best interests. It would talk about our views of custody when our relationship was peaceful (and not pitted against each other). Things like our views of both of us being capable parents, personal belief that joint custody is in the best interests of child or if we can't work together that even split legal custody would be our preference, etc.

*****I'm curious whether you believe a family judge would allow such a letter to be admissible as evidence and whether that would play any baring on their decisions (lets assume that once the day came one of the parents were no longer in agreement with the letter). I realize that the best interests of the children is the standard, but would a judge be swayed by a prior written opinion on the best interests from the child's own parents?**

Would resigning the letter every ~5 years (and having multiple copies as evidence) be a big help or a little help?

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Admissibility is one thing, enforcement is another.

My observations, which are more detailed than casual, is that Family Courts are a different breed, and more than most any other court, "they do what they want."

I have associates who had agreed to stipulations, detailing how a child might be handled, only to have a family court decide at some point to implement some completely different plan, and in doing so run against what both parents were interested in doing.

Prenuptial agreements appear to be meaningless, as this is not about the assets of the couple, it is about the state's interest in the child. Even then, the courts seem to act in manners which appear to not be in the best interests of the child (and sometimes even say so.)

Back to your question, would an agreement be admissible? Yes.

Does it mean much? In my opinion, and based upon the preponderance of evidence, no.

Do whatever you have to do to stay out of family court. Being married doesn't matter. Working together for 21 years does.

In the future, you should state the jurisdiction you are in. It does change the answer, but in this case only subtlety.

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  • Thanks this was very helpful. The state here is MN. Many websites suggest that in MN all parenting plans still need to be submitted for approval to the Family courts, but most often do get approved. Can you think of any preplanned methods that would dissuade a parent from wanting to take their chances in family court? Can a prenup provide for financial bonuses (in division or maintenance) to a spouse for not seeking majority custody, moving away, etc.? – Engaged Guy Mar 2 '20 at 19:36
  • Another option. Lets say you had 2 children... could each spouse relinquish sole guardianship to the other spouse while married? Child A's guardian is sole parent A. Child B's sole guardian is parent B. They remain together for 7 years and then decide to divorce. Would they effectively be able to avoid family court because of the split custody and then be forced to work together if each parent wants to see both children? – Engaged Guy Mar 2 '20 at 19:39
  • It doesn't matter about promises or money being changed. The family court will "do what they want." The only effective technique is to not go there in the first place. For example, you could never get married (which means you would never get divorced) and as long as you both cooperatively wanted to work together you could. The problem comes in when one of you decides the grass is greener elsewhere. And one of you decides that they should get more for taking care of the kids. The problem gets worse if one of you is a high-earner. I – mongo Mar 2 '20 at 23:31
  • The state will have the two of you do what they want you to, regardless of what promises you make to each other. The only avoidance technique that I know is to avoid family court. Be real nice, be generous with your money, pamper the other parent... You can stipulate to a solution, and the court can approve it, and then next month one of you argues for more, and the court rewrites things. To be fair, there is case law against this, but the courts still do it, and appeals start at 10-15K. – mongo Mar 2 '20 at 23:35
  • Mongo wouldn't some documents act as a deterrent to the other side to go to family court? I mean lets say there are many letters saying both are great parents and both believe in joint custody and there is separately a prenup on the financial side. Let's say spouse A is considering fighting for more. Wouldn't their attorney tell them "Hey family court is already pretty random, but if you want way more you're walking in there armed with nothing. Now those letters may not mean much and the prenup may be invalidated, but at least your spouse (B) has that. Maybe just take the good deal you have?" – Engaged Guy Mar 2 '20 at 23:50
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In a custody case, the judge is charged with determining the "best interests of the child" and pre-dispute agreements between parents are not legally binding.

A judge has broad discretion to consider almost any kind of evidence pertinent to its broad mandate, and to decide what is and isn't relevant in a case. But, such a writing is only relevant to the extent that it informs what is in the best interests of the children. So, even if it is admissible (and it might be), it probably wouldn't be given much weight.

Even if the parties mutually agree in open court regarding parenting time and parental decision making, that decision isn't binding on the judge, although, in practice, it would almost always be honored absent a truly glaring and obvious problem with their mutual agreement (e.g. a joint agreement to place the child with a previously convicted human trafficker rather than with either parent).

A judge in a custody case has no mandate or obligation or reason to consider the reasonable expectations of the parents concerning how custody matters will be resolved, and the desires of the parents are only tangentially and indirectly relevant.

On the other hand, judges in custody matters often seek to maintain the pre-separation status quo out of the belief that children benefit from continuity with their prior lives, both in terms of visitation arrangements and in terms of major parental decision-making.

For example, if a child has gone to the same school all of his life, the judge is likely to see that as relevant when deciding upon which school the child should attend going forward, even if both parents have suggested that a different school would be better if they split up in past signed letters.

Past actions are going to speak much more loudly than past words.

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