http://moritzlaw.osu.edu/lawjournal/issues/volume65/number3/jellum.pdf
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’s 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 “parental
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’
fundamental right to make parenting decisions for their children.
After describing the judicial reluctance to enforce any provision in marital
agreements, this Article identifies the three standards that states currently use
when parents in a divorce action have made such a custody agreement. Most
states regard the parental agreement, if at all, as one factor in an analysis of what
is in the child’s best interest (“the best interest standard”). Some states presume
that the parental agreement is in the child’s best interest, but require the judge to reject the agreement if it is not (“the presumption standard. Finally, West
Virginia requires judges to defer to the parental agreement unless it would be
harmful to the child (“the parental deference standard”). Thus, under the best
interest standard, judges may enforce parental agreements; under the presumption
standard, judges should enforce these agreements; and under the parental
deference standard, judges must enforce these agreements unless the child would
be harmed.
This Article argues that the parental deference standard is the best of the three
standards........