I was wondering if it exists the possibility of signing a legal agreement before impregnation that states legally that both parents compromise into offering shared physical custody of the child to each other in case of divorce or separation.

Do theses types of contract exists? are they legal? I currently live in Switzerland, but the question is meant generally.

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    To clarify, you are asking about a contract that two partners enter into before they have children and the subject is their care and custody arrangements for any children they have in the event of a divorce/separation? – Bart van Ingen Schenau Jun 23 '20 at 12:52
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    I do not know about Switzerland, but in the jurisdictions that I know of the parents'agreement are not relevant; a judge would decide primarily on the basis of the best interest of the child. If the parents reach an agreement and the judge sees no issues with any of the parents the judge will accept it, and at any moment a parent could renege of a previous agreement and explain why he/she thinks now that such agreement is not in the best interest of the children. – SJuan76 Jun 23 '20 at 13:00
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    In other words, children are not things but people, and as people they do have rights. Additionally since they are in a weaker position judges and other instances try to protect those rights from being infringed upon, even if that infringement comes from their parents. – SJuan76 Jun 23 '20 at 13:13
  • I understand that it is on the final interest of the child how such a separation will take place. But is there any way you can secure that under normal circumstances (no physical abuse, no moving to a different country etc...) shared physical custody will be granted if the parents initially agreed as the fair and best solution for the children? In other words, if any of the partners then decides that he/she deserves single physical custody (without specific reason) and the laws favour that solution by "default", might such a document/contract be taken into account to favour the other partner? – John Vestrun Jun 23 '20 at 15:04

Short Answer

I was wondering if it exists the possibility of signing a legal agreement before impregnation that states legally that both parents compromise into offering shared physical custody of the child to each other in case of divorce or separation.

Do theses types of contract exists? are they legal? I currently live in Switzerland, but the question is meant generally.

Agreements of this type are not valid in Switzerland, the U.S., Australia, or any other jurisdiction of which I am aware. There are some fine nuances to this general rule, however, that are explored below.

Obviously, of course, there are many countries in the world, and there could be an outlier out there somewhere.

Exceptions For Choice of Family Religion Agreements

In particular, in some countries, such as Israel and India, the substantive family law rules that apply to a married couple and their children are governed by the religion of that family as determined by law. Thus, Muslims families and Hindu families in India, for example, are governed by different laws related to child custody.

In these countries, there is a legislatively approved set of family laws for each faith, but the laws for members of one religion are not the same as the laws for members of another religion, and there are typically rules to determine which sets of family law to apply in cases where the parents of a child belong to different religions.

Pre-nuptial agreements in these countries may govern, to some extent, how a married couple's religion is determined for intra-national choice of law purposes, although they cannot specifically resolve custody issues on a pre-dispute basis.

U.S. Law

In General

This would not be enforceable in most U.S. states. Agreements between parents in matters involving children (even post-dispute) are generally not legally binding, because the court has an independent duty to evaluate the best interests of the child under the circumstances as they actually present themselves. Courts can and do appoint third-party guardians ad litem to evaluate the best interests of the children when they have any reason to doubt the judgment of the parents.

Put another way, pre-nuptial agreements and post-nuptial agreements, may govern property division and maintenance and restoration of name and inheritance rights and enforcement of economic provision rules, in the event of death or divorce, but may not govern parental responsibilities or child support or the circumstances under which the marriage may be terminated.

Post-Dispute Agreements

In practice, if parents come to a post-dispute agreement that happens to track the outlines of a non-binding pre-dispute agreement regarding parenting time and parental responsibilities, and the agreed resolution seems reasonable after perfunctory due diligence, a Court would usually ratify that agreement without much second guessing.

But, the pre-dispute agreement would be only marginally relevant in the event of a dispute and would not have legal validity. It might be considered by a court as one factor among many in addressing the parenting dispute, as a source of ideas for a resolution and to ascertain the expectations and perspectives of the parents, but would not be given much weight in most cases.

Exceptions For Dispute Resolution Method Agreements

The exception would be that in some jurisdictions, a mediation or arbitration clause for parenting disputes in a material agreement would be honored, although the same substantive law would apply, in theory.

Exceptions For Assisted Contraception And Surrogacy Agreements

Note, however, that most jurisdictions in the U.S., do honor and give legal effect to a contract regarding the intended parent in a medically assisted conception or surrogacy contract, in which a pregnancy arises through some means other than intercourse between a man and a woman which of the source of the sperm and egg from that man and that woman that gives rise to a fertilized egg (e.g. cases of sperm donation, artificial insemination, in vitro fertilization, etc.).

In those cases, the default rule is generally that the legal parents of the resulting child are the intended parents under the contract. But, this is purely an agreement governing paternity, and not parenting once a child is born.

Swiss Law

While I do not have first hand knowledge of Swiss law, a digest of Swiss law prepared by Westlaw (a major law book publisher and online legal research provider) does state the rule of Swiss law clearly, however:

The areas a pre-nuptial agreement can cover are fairly limited. The following cannot be determined in advance:

  • The preconditions for a divorce, nullification or separation of a marriage are ultimately governed by law. Any agreements that are not compliant with the law are invalid.

  • Agreements on arrangements for children, in particular about parental responsibility, visiting rights or maintenance, made in advance, are not binding.

  • Any amounts saved in pension funds during a marriage are divided in the event of a divorce. Waiving such a division is only possible under very restrictive conditions. Agreements in a marital contract that are not compliant with the law are invalid.

This source also identifies the precise statutes and treaties that apply to resolve these questions of Swiss law.

Choice of Law and Forum Related Issues

There is also an implicit choice of law issue presented.

Choice Of Law and Forum Agreements Are Usually Void

Generally speaking, under U.S. law, these issues are governed in domestic cases by the state that is the "home state" of a particular child under a statutory test and the parents may not contractually agree to a choice of venue.

In international cases by the state and country that are the home state and country of the child under a test established by treaty which may not be contractually agreed to in advance.

Since the applicable statutory tests in the U.S. usually direct a court to apply the laws of the state with which the child has the strongest residential connection (except for Native American children whose family law disputes are subject to tribal law), and since laws relating to divorce and parenting are matters of state and not federal law for the most part (except as to choice of law and choice of forum issues, and certain federal welfare program guidelines for child support that states have economic incentives to comply with and all do), the law governing parental rights and responsibilities (and over the circumstances when a couple may get divorced) may change over time as the family (and each particular child) moves over the course of their lives.

In international cases where there is not treaty in place between the potentially relevant countries (and in which diplomatic personnel or members of foreign royal families or families of heads of state are not involved), a U.S. court will generally apply the law of its own state in all cases where it has jurisdiction over the child, or of both parents. Jurisdictional disputes and inconsistent decrees are resolved in part through diplomatic channels at the national level in these cases.

There Is Little Variation In U.S. Substantive Custody Law

In practice, this isn't a very important observation in domestic cases, however, because almost every U.S. state gives judges extremely broad discretion to handle custody disputes on a case by case basis under a "best interests of the child" standard during the last several decades (even though this isn't constitutionally required), subject only to the barest U.S. constitutional limitations prohibiting decisions that amount to a termination of a legal parental relationship without certain forms of due process, and there aren't huge differences in the case law applying that standard in practice between states.

The differences between particular judges in a particular county would typically be as great or greater than the difference between different states, when it comes to final outcomes in disputed and litigated cases.

Before the best interests of the child standard was adopted more or less universally, many states had a sex specific "tender years doctrine" that presumptively gave custody of younger children to mothers and older children to fathers. But that standard was held to be unconstitutional because it discriminated based upon sex. In each state where the tender years doctrine or similar sex specific custody doctrines were held to be unconstitutional, the "best interests of the child" standard was adopted rather than a gender neutral standard that provided more guidance to judges such as a dictate to maintain the status quo as much as possible such as a "primary caretaker presumption" (which many judges applying the "best interests of the child" standard actually apply in practice).

Most European countries also follow the "best interests of the child" rule for child custody.

One of the big differences between jurisdictions in their laws typically involve issues like the standing of people other than parents to intervene in parenting litigation, such as grandparents, stepparents and social workers, and the rights of these third-parties vis-a-vis the legally recognized fathers and mothers of a child, and the circumstances under which an adoption and related relinquishment of parental rights is valid.

The procedures that apply in family law cases also often differ significantly between jurisdictions.

Exception For Post-Dispute Choice of Law and Forum Agreements

However, once there has been a litigated dispute in the first instance, that jurisdiction will generally retain authority over the parenting of the child set forth in a decree. But if there is an agreement of the parents which has been ratified by a court regarding choice of law and venue that will be honored in a post-dispute settlement agreement. Also, there are typically statutory circumstances that cause the original jurisdiction to address a parenting dispute to lose authority over the child.

For example, suppose that a couple divorces in England with a separation agreement approved by a court that states that the divorce court in London shall have continuing jurisdiction over future custody and child support disputes and the London divorce court approves that agreement. A U.S. or Swiss court would usually defer to the London divorce court for these matters at that point, unless some emergency or change of circumstances undermined the relevance of London to future disputes involving the child.


Such a contract is unenforceable

Family law is primarily concerned with the best interests of the child(ren); not the wishes of the parents.

If the relationship breaks down, the court will decide custody arrangements based on the law.

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