You typically cannot waive child custody rights when creating a prenuptial agreement. You also cannot write it in such a way that you are guaranteed custody rights of your future children.
As a general rule, prenuptial agreements should not address child custody at all. They are more for making important financial decisions, such as how a couple will split up the assets that they own together. Prenups are not for splitting up either legal or physical custody rights.
If your future spouse comes to you and asks you to sign a prenup stating that you will not seek custody or be involved with a child after a divorce, you need to know that would likely invalidate at least that portion of the prenuptial agreement. Even if you signed it, it is not likely to be binding if a divorce occurs.
Why can’t prenups address custody?
There are only certain things that are legally allowed to be put into a prenuptial agreement, and custody is not one of them. Instead, the court has the final authority to make custody decisions during the divorce proceedings.
One key thing to remember is that the court focuses on a child’s best interests when determining how custody should be split up. A prenuptial agreement that was signed before that child was even born may not be in the child’s best interests. Thus, even if both parents agreed to it, it may conflict with the court’s goal.
Dividing custody of children during a divorce certainly can be complicated, as can creating a prenuptial agreement before you get married. In either stage of your relationship, it can help to work with an experienced attorney.