No Inclusion Clauses and Child Custody
Some marriages have agreements that include “no-inclusion” clauses with respect to certain aspects of their household. The idea is that you can exclude certain things from a divorce proceeding should your marriage ever dissolve. But can this be applied to child custody? In other words, can a couple determine child custody by contract such that the issue would not be decided through the Court system like in a normal divorce? Probably not. While Courts typically recognize and enforce legal agreements, there is a greater responsibility that, in this case, would probably override any prior agreement. The duty to ensure the child’s best interests are met is the Court’s first priority. Jennifer Paine explains more:
A separation agreement is really a contract. In general, a “no inclusion” clause is an attempt to keep a contract from being truly binding in court. However, this type of clause flies in the face of what a contract is – a binding agreement designed to ensure predictability – and, in my experience, some courts will not consider an argument that a contract “is really not supposed to be considered” in contract dispute cases.
The same is not true for child custody cases. In most states, the court has an independent duty to ensure that its ultimate custody order is in the child’s best interests, regardless of what the parties agree in a separation agreement. Therefore, it is possible your separation agreement, as far as it addresses custody, will not be binding even if you wanted it to be binding.
If you have a divorce or custody problem in Knoxville, TN feel free to call us for a consultation.
