Pre-Birth Custody Agreement: What Is This?
An agreement made during pregnancy between expecting parents concerning the custody of their unborn child is known as a pre-birth custody agreement. It possesses supplemental legal authority, and can even overrule current Illinois law in some cases by privatizing the issues that the law typically would address. They are not legally binding until the child is born and the case is opened in the court system, but the statute does not prohibit using them to prepare for litigation during that period. Common issues related to custody determined by pre-birth custody agreements are the allocation of parental responsibilities and parenting time. The pre-birth custody agreement may also set forth a plan for travel time with the child, as well as the amount of financial support the people involved plan to provide the child .
This type of agreement is different than a standard custody agreement because it is agreed to prior to the child’s birth. A standard custody agreement is not binding if there is no official court custody case currently underway, and it must be filed with the court. A pre-birth custody agreement is different in that it provides structure for prospective co-parents to discuss some of the big aspects of their impending co-parenting relationship, such as where the child will live, where the child will go to school and what will happen in the event of a non-life-threatening emergency. It is more limited in scope than a traditional custody agreement because it focuses only on the basic issues that need to be addressed before childbirth.
Why a Pre-Birth Custody Agreement?
The primary reason for entering into a pre-birth custody agreement is to clarify the intentions of the parties. Without such an agreement, the law governing issues surrounding the conception of a child tends to favor traditional parenthood. In all cases, the best interests of the child factor heavily into the final determination of parental rights. If, for example, a surrogate mother challenges the agreement, it is likely that a court will find a biological connection between the mother and the child and award custodial rights to her, regardless of her prior intentions. This does not mean that challenges to pre-birth custody agreements will never be successful; it simply means that courts place great emphasis on the best interests of the child.
The circumstances of some heterosexual couples do not lend themselves to falling under traditional laws regarding parenthood. For gay or unmarried couples who desire to have a child, particularly females, a pre-birth custody agreement can clearly articulate each party’s intentions and help to avoid legal entanglements in the future. This holds true for homosexual "couples" who choose to engage the services of a surrogate mother, regardless of whether the surrogate mother has any genetic ties to the child.
In some states, a biological donor who donates his sperm to a woman is not legally considered the father of that child. However, if the couple is unmarried, the law does consider the woman to be the child’s mother. This situation could lead to complications if, for example, the woman and the biological donor later marry. Depending upon the circumstances, the biological donor could then claim parental and custodial rights over the child. Clearly, a pre-birth custody agreement could alleviate this problem by establishing and clarifying parental rights prior to the birth.
How Pre-Birth Custody Agreements Work Under the Law
While pre-birth custody agreements may seem simple or even optional on the surface, pre-birth custody agreements are actually important, legally significant contracts. As a result, there are legal considerations and challenges that must be taken into account when entering into any pre-birth custody agreement.
One important issue to keep in mind is jurisdiction. Separate jurisdictions may not agree on whether pre-birth custody agreements are legally binding and enforceable. Accordingly, at least one side in the agreement could take legal action in order to force the other party to comply with the contract.
Some states, such as California, allow for a pre-birth custody agreement to be validly created before the unborn child’s birth. Even these states, however, require that the agreement be entered into by specific parties and under specific conditions. The excerpts below from California Family Code Section 7630(a) help to put the state’s stance on pre-birth custody agreements into context:
7630. (a) Religious and secular solicitude. Nothing in this part shall preclude the issuance of a protective order or the making or enforcement of any temporary or permanent orders, or of any agreement of parties, based on religious or secular solicitude for the child which shall have the force of law, in furtherance of the best interest of the child. The court may at any time make orders for the care, custody, education, and control of a minor for whom no protective order may issue. The Court of Appeal decision in Theodora Holdings, Inc. v. Decker (1953) 114 Cal. App. 2d 661 is instructive on this issue.
There are also jurisdictions that expressly prohibit the creation of a pre-birth custody agreement, sometimes in order to prevent situations where a woman enters into an agreement that she later views as unfairly coercive.
In addition, there are other important legal considerations to make when crafting and signing a pre-birth custody agreement, including when deadlines for filling out Form 18 may approach, for how long provisions within the agreement are intended to last and individual state law.
How to Create a Pre-Birth Custody Agreement
It is always ideal to enlist the services of a lawyer to help create a pre-birth custody agreement. Enlisting the help of an experienced attorney will help ensure that your intent is met and that the agreement is entered into properly. There are several steps, however, that need to be taken, even before you enlist the help of a lawyer. For instance, it is important to address the process with the other parent well before the birth of a child. While this can be a difficult conversation in some circumstances, open and honest communication will often help both parents feel more comfortable with the concept of a pre-birth custody agreement. You and your partner will both have to sign the agreement for it to be enforceable. As a result, you will both want to be confident in the agreement being entered into.
After the parents have agreed to the idea of creating a pre-birth custody agreement, the next step is to begin drafting the agreement. It is important that both parents understand that all items they intend to include in the agreement must be included in the final agreement, as items can easily be forgotten. In addition, it is important that each item is clearly and explicitly addressed in the agreement, as unforeseen issues may arise after the baby’s arrival. It is critical for the success of the pre-birth custody agreement that both the parents and any attorneys involved understand that the agreement is written carefully to address specific needs of all involved parties to handle potential future issues.
In the event that the pre-birth custody agreement is created by a lawyer, it is important to work with your attorney to ensure that your intent is met. It is always a good idea to make sure to include basic provisions such as: All parties involved should understand that changes to the pre-birth custody agreement can occur at any time. In addition, the pre-birth custody agreement does not replace any formal custody orders entered at the conclusion of a divorce or separation. Instead, a pre-birth custody agreement serves as a guide to help parents address issues on which they agree prior to birth or prior to subsequently getting divorced or separated. While some issues may change over time, parents have the opportunity to record their wishes based on current circumstances.
Common Components of Pre-Birth Custody Agreements
In the realm of child custody, pre-birth custody agreements are a relatively unfinished chapter. Through these contracts, prospective parents can map out their intentions and how they will rise to the challenges of parenthood before a child is ever born. But like any agreement governed by contract law, certain provisions are generally included, regardless of the unique nature of the circumstances surrounding each potential child.
Custody Arrangements
Just as parties can determine any aspect of their relationship in a prenuptial agreement, a pre-birth custody agreement can include provisions about how anticipated physical custody will unfold. This can help expecting parents to better plan for the future.
Financial Responsibilities
Any arrangement that may impact child support can also be covered in pre-birth custody contracts. This can help both parties to plan for the eventual costs associated with child rearing , while giving them an avenue to discuss whether they want to deviate from the generally accepted support obligations that may surround them otherwise.
Decision-Making
When a child is born into the world, he or she is almost guaranteed to be met by a multitude of decisions. Whether to allow the child to eat solid foods or to begin kindergarten at a younger age are among the many choices that must eventually be made. Agreements on these issues can be set forth prior to birth, as well.
Termination of Rights
Whether it concerns the birth mother, a birth father or a third party, establishing a clear understanding about how rights may be terminated is an important step for those who may seek to do so.
Pre-birth custody agreements are easier than ever to create, but only for those who understand their needs.
Pitfalls and Drawbacks of Pre-Birth Custody Agreements
As legally binding contracts, pre-birth custody agreements have inherent limitations and challenges to their enforcement that are important for expecting parents to be aware of. Chief among these are the potential challenges to the formation and legality of the agreement itself. For example, an agreement may be invalidated, or unenforceable in a legal setting, due to questions concerning each party’s mental capacity to participate or contribute to the contract or because one party was coerced into signing under duress.
Despite their limited enforceability when it comes to custody and parenting time, there are circumstances where the court will enforce a pre-birth custody agreement. In determining whether it is necessary to invoke its inherent power to enforce a contract, the court will evaluate whether there is evidence that the agreement is in the best interests of the child. If the custodial agreements stipulate the duration of custody, the court may also consider how long the parents were living together in the same state when they entered into the agreement or whether the duration of each parent’s custody was expressly considered.
There are a number of other factors affecting the enforceability of pre-birth custody agreements. These include, but are not limited to:
All of these factors must be thoroughly investigated and vetted before pre-birth custody agreements are put into effect in hope of avoiding disputes between parents that can compromise the best interests of the child.
Pre-Birth Custody Agreement Case Studies
Study 1 – Suicide by Parent
Consider the case of Smith v. Brown, 447 S.E.2d 11; 1994 Va. App. LEXIS 55. In Smith, mother and father entered into a pre-birth agreement during the course of their courtship during the mother’s pregnancy with their child. The agreement provided for joint custody, specifying that mother would be primarily responsible for the child’s welfare. Pursuant to the agreement, the parties were to have joint legal custody of the child but the child would live primarily with the mother with reasonable visitation rights granted to the father. They further agreed that the father would have sole literary rights in the child and that when the child was of a certain age, any custody disputes between the parties would be settled based on a majority vote of the parties and two others who would be appointed as "guardians ad litem" by the trial court. When the agreement ended, the parties did not get married and the mother did not allow father to have any contact with the child. Two years later, when the child was four years old, father filed a motion to have the agreement enforced. The trial court held hearings and concluded that the written agreement was a binding contract. The court further found, among other things, that (a) the mother’s breach of the contract was tortious; (b) she had committed fraud; and (c) the agreement was in the best interests of the child. Mother appealed. The court found that the trial court had properly exercised its discretion and concluded that the terms of the agreement between the parties were in fact binding on the parties. The court ruled that the father was entitled to damages for the disfiguring of the child as a result of the mother’s actions . Although the court did not require that the mother obtain a court order approving her actions, the trial court’s award of custody to the mother did not properly specify a need for supervision of visitation between the father and child or for appointment of guardians ad litem because the parties had not even discussed these issues as part of their pre-birth agreement. This indicates that if a court order is sought to approve decisions made prior to birth, the decree should set forth parameters for how decisions will be made. This is especially true if the court order seeks to determine custody or visitation and the parties have not agreed in their pre-birth contract to allow custodial or other decisions to be made differently than they might otherwise be made.
Study 2 – Reliance on Agreement
In Brian C. West v. Patricia M. McCluskey, 174 P.3d 1217; 2008 Colo. App. LEXIS 142 (Colo. App. Jan. 3, 2008), the court discussed the West v. McCluskey case, where the parties executed a pre-birth agreement that specifically addressed paternity, custody, and visitation in the event of the death of one or both parties. In the event of their deaths, the parties further agreed that custody would be divided equally, the minor children would reside one week with each party, and each would pay child support, when appropriate, according to the Colorado Child Support Guidelines. As a result, the agreement was issued a court order approving everything set forth therein in the event the parties’ relationship terminated for any reason other than the death of one or both parties. This case illustrates that a written pre-birth agreement may be enforceable through a court order, regardless of whether the parent giving birth was married to the additional executing parent to the agreement.