Prenups are beneficial contracts that help protect couples financially in case of a divorce. But what exactly can be written in the document? Couples may wonder whether they can include child custody terms in a prenuptial agreement, but it is important to understand that these contracts have limitations. For more information and legal advice, work with an experienced Memphis, Tennessee prenuptial agreement lawyer today.
Can I Include Child Custody in My Prenuptial Agreement in TN?
Technically speaking, couples can include any information and provisions they want in a prenuptial agreement. However, not all of the terms will hold up in court. If child custody arrangements are included in a prenup, they will generally be deemed unenforceable and rejected by the court.
Child custody falls under public policy, meaning that Tennessee courts have the official authority to make these types of decisions. Prenuptial agreements are created and signed before the couple gets married. Oftentimes, this means that it was also created and signed years before the child was born and long before the time of the divorce. A couple cannot create a custody arrangement that far in advance that takes into consideration all future circumstances, capabilities, and needs.
How is Child Custody Decided in TN?
As established, child custody arrangements cannot be created via a prenuptial agreement, as there is no way to accurately predict what the circumstances and the child’s needs will be at the time of the divorce. Instead, Tennessee courts have the final say regarding child custody and support matters.
Parents are allowed to draft a custody agreement on their own for review by the court, taking into account the relevant and current circumstances, which the court can accept or reject. If rejected, the court will create a new custody arrangement that prioritizes the best interests of the child. Custody is determined based on the following factors.
- The child’s relationship with each parent
- Each parent’s past and potential for future performance of parenting responsibilities
- Evidence of a lack of good faith on the part of either parent
- Whether either parent can meet the child’s various needs
- Which parent has been the primary caregiver
- The emotional ties between the child and each parent
- The needs of the child
- The fitness of each parent to care for and parent the child
- The child’s relationship with siblings and other relatives
- The stability of the child’s home life
- Evidence of physical or emotional abuse on the part of either parent
- The behavior of any other people who reside in or frequent each parent’s homes
- The reasonable preference of the child, depending on their age and maturity
- Each parent’s work schedule and responsibilities
- Whether a parent has failed to pay child support for a period of three years or longer
- Any other factors deemed relevant by the court
Prioritizing the child’s well-being and safety is of the utmost importance, which is why TN courts consider such vast information before making custody decisions. This is also why it is impossible for a prenup to accurately determine what will be in the child’s best interests.