In today’s world, prenuptial contracts are common, and are generally binding on spouses with respect to financial agreements. However, contractual agreements about parenting rights and obligations are not legally enforceable, unless and until reviewed and approved by a judge at the time enforcement is sought. Why? The answer is because lawmakers have historically maintained that the government must be the final arbiter of what is in the “best interests” of children.

Typically, the only time parents negotiate binding agreements regarding their children is when they are separating or divorcing. These enforceable parenting agreements address how decisions will be made around major issues (school choice, medical providers, activities, religious training, etc.) and identify schedules for who will be caring for the children and where the child will live. Courts usually approve such divorce-related parenting agreements. If parents “agree,” a judge typically won’t order further investigation into what is best for their children. But, unfortunately, at the time of divorce parents are often prone to be hostile to each other, and (perhaps unconsciously) to use children as pawns in the negotiations. Sometimes one parent is fearful she will lose parenting rights, so feels coerced, and capitulates to unfair financial terms in exchange for a reasonable parenting plan. The resulting custody agreements in conflictual scenarios are unlikely to be in the best interests of children.

Even collaboratively negotiated agreements may be the product of a fear-based negotiation process, resulting in negative outcomes for children either through a parenting plan that isn’t truly based on their best interests, or because one parent needlessly sacrificed financial position in a bid to protect a child.

Less frequently than in the context of divorce, parents enter into formal agreements regarding their future children, i.e., in the context of assisted reproductive technology, an agreement by a donor of gametes (sperm or ova) to relinquish parental status. Like parenting agreements entered into at the time of divorce, these kinds of “parentage” agreements are typically binding and enforceable.

Some legal experts are starting to argue that courts should enforce parenting contracts made prior to any contemplation of divorce, just like marital contracts related to financial issues, or parentage agreements made in the context of assisted reproductive technology. As law professor Sarah Abramowicz argues in this journal article, parenting contracts entered into when the relationship is intact—at a time when the parents are presumably in a loving relationship and not adversarial—are more likely to reflect the best interests of any children, because the coercion and bargaining problems of addressing custody issues at the time of divorce are not present. Moreover, by subjecting “non-intact” families to the perpetual threat of court intervention, even in the absence of any true threat of harm to children, potentially diminishes the autonomy and stability of those families, creating a subclass of families who are treated differently than “intact” families, to the detriment of parents and children. Professor Abramowicz makes the point that, as long as parenting contracts are made with voluntary and informed consent, which is already required for any marital or premarital contract, such legal agreements have a currently unrecognized potential to provide separated families with “stability, certainty, and freedom from state intervention.”

Is it possible that contracting around future parenting rights and obligations could lead to bad results at the time the parents’ relationship breaks down? Children change, and what is in their best interests can change over time. The primary objection to enforcing parenting contracts without judicial investigation and oversight is that such contracts may be contrary to the “best interests” of a child. The classical argument is that courts must retain discretion to override parental agreements because parents cannot accurately determine their children’s interests in advance.

But “best interests” as a legal standard can be interpreted to cut in many different ways, and allowing a judge to intervene in rewriting agreements that are good enough, simply introduces unnecessary unpredictability. We should feel confident that a more exacting legal standard, such as potential harm to a child, which is already the standard applicable in most instances where existing legal arrangements are in need of modification, is enough of a safety net to avoid enforcing parenting contracts that would harm a child’s emotional, intellectual, or physical development. Professor Abramowicz points out that “[c]oncerns about insufficient judicial scrutiny of custody agreements under this more deferential standard can be addressed through presumptions that certain situations are harmful to children, such as an award of custody to a parent who has engaged in domestic violence.”

In sum, there are strong, forward-thinking arguments that parenting contracts should be legally enforceable, without judicial investigation of a child’s best interests, if a court determines the agreement was created via a procedurally fair process (i.e., entered into voluntarily, without coercion, and with informed consent) and that no presumptions or evidence exist that the terms are likely to harm a child’s development.

While the legal community has yet to embrace these ideas fully, there are good reasons for new parents to consider creating a parenting contract with the intention that it be binding and enforceable, whether or not they are married or are getting married. First, judges may start to enforce such contracts in the future, without investigation into “best interests.” Second, judges are already in a position to approve such contracts, after (perhaps minimal) judicial review of best interests. The terms of a contract, even if one parent is now attempting to dispute those terms, may be relevant to a judge in issuing final parenting orders.

Like any contract, a parenting contract would not be enforceable in any case until presented to a court for enforcement. Parents who maintain collaboration and functionality as a team, whether they are “intact” or “non-intact” as a family unit, will likely never need to seek legal enforcement of a parenting contract. And any good contract is designed primarily to support collaborative functioning so that major disputes never arise. Negotiating a parenting contract requires discussion of mutual values, planning for potential outcomes, setting forth clear intentions, and stating explicit commitments. What else provides as good a foundation to launch a new family?

John Hoelle is Co-Founder of Conscious Family™ Law & Mediation. Our family law and estate planning attorneys work primarily as neutral facilitators, and we love guiding both members of a couple to work together to create their own, unique Conscious Family Contract: a holistic prenuptial agreement or cohabitation agreement, designed to create the foundation for an extraordinary family.