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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