Can Child Custody Issues Be Included in a Prenuptial Agreement?

 Posted on June 21, 2023 in Family Law

When couples enter into a prenuptial agreement, they often want to include provisions related to property division and spousal support. However, some couples may also want child custody and visitation provisions. In Illinois, the state’s family law statutes do not allow couples to include child custody provisions in prenuptial agreements. If you need legal assistance in ensuring your prenuptial agreement is legally binding, contact a family lawyer to ensure you can create an ironclad prenup void of costly errors. 

How Are Child Custody Matters Handled in Illinois? 

Under Illinois law, decisions concerning child custody must be made with the best interests of the child in mind. The court has various considerations when making a custody determination, such as the child’s current relationship with their parents, the parent’s ability to care and provide for the child’s needs, and the age and gender of the child, among other things. While prenuptial agreements are designed to allow couples to make their own decisions about property rights and other financial matters when it comes to anything related to children, the law has determined this is an area that needs to be decided on an individual basis and, according to the child’s needs.

It is also essential to understand that prenuptial agreements are subject to review by the court. If a couple includes a child custody provision in a prenup and later divorces, the court will not be bound by that provision. Instead, the court will use the best interests of the child standard to decide custody, regardless of what the prenup says. 

Why Do Courts Not Allow Prenups to Include Custody Decisions? 

There are two main reasons why courts do not allow custody issues to be a part of a prenuptial agreement. First, child custody is an area where the legal standard differs from that of property division or support payments. The courts make custody determinations on a case-by-case basis, and the process often involves a great deal of collaboration between the parents. 

Secondly, child custody is a highly emotional issue, especially in contested custody cases. Courts understand that parents do not always make sensible or rational decisions that are in their child’s best interest. As a result, courts maintain as much self-governance over child custody issues as possible. 

Contact a DuPage County Family Lawyer

Contact the Wheaton family law attorneys at Goostree Law Group for assistance crafting a prenuptial agreement. Call 630-364-4046 for a free consultation. 

Source:

https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59