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83 Fordham L. Rev. 67 (2014-2015)
Contractualizing Custody

handle is hein.journals/flr83 and id is 75 raw text is: ARTICLES CONTRACTUALIZING CUSTODY Sarah Abramowicz * Many scholars otherwise in favor of the enforcement offamily contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children's custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed intact--typically consisting of two married parents and their offspring-and those deemed non-intact. Intact families are granted a degree offreedom from government intervention, provided that there is no evidence that children are in any danger of harm. Non-intact families, by contrast, are subject to the perpetual threat of intervention, even in the absence of harm. The result of this two-tier system is that non-intact families are denied the autonomy and stability that intact families enjoy, to the detriment ofparents and children alike. The goal of this Article is to address inconsistent scholarly approaches to custody agreements, on the one hand, and parentage agreements, on the other. Marital agreements about children are largely unenforceable, and even scholars who otherwise favor the enforcement of marital agreements largely approve of this approach, concurring that a court should be able to override a contract concerning children's custody if it finds that enforcement is not in the children's best interests. By contrast, those who write about parentage agreements, such as those made in the context of assisted reproductive technology or by unmarried, single, or multiple (i.e., more than two) parents, are more likely to favor the enforcement of such agreements. This Article argues that many of the rationales for enforcing parentage agreements extend to custody agreements as well. INTRODUCTION ........................................................................................ 69 I. CURRENT JUDICIAL APPROACHES TO PARENTAL AGREEMENTS ........... 73 A. Custody Contracts ................................................................ 73 * Associate Professor of Law, Wayne State University Law School. I am thankful, for their helpful suggestions and insights, to Kerry Abrams, Erez Aloni, Mary Pat Byrn, James Dwyer, Clare Huntington, and Chris Lund. Earlier versions of the Article benefited greatly from presentations at the annual meeting of the Association for the Study of Law, Culture and the Humanities and at the Emerging Family Law Scholars and Teachers Conference.

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