Parents Know Best: Revising Our Approach to Parental Custody Agreements

Historically, parents have not been able to determine custody of their children prior to marriage in the form of a prenuptial agreement. Although parents are able to enter into such agreements, courts normally have a great deal of latitude in ignoring these agreements. A majority of states merely consider the agreement as one factor in determining what is in the child\u27s best interest, while the majority of the rest presume the agreement is in the best interest of the child unless the judge finds otherwise. Only two states defer to the parental agreement unless it would be harmful to the child. This Article maintains that this \u27parental deference standard is the best of the three standards for three reasons. First, this standard would lead to better decision-making because it would remove the decision from the hands of judges. Second, this standard would significantly improve the child-custody process. Third, this standard best respects the parents\u27 fundamental right to make parenting decisions for their children