The General Limit: Best Interests Can't Be Pre-Decided
Parenting-related provisions in any agreement, including a separation agreement, are generally always subject to the best interests of the child standard, assessed at the time the arrangement actually matters — not locked in permanently by what parents agreed to earlier. This general principle applies with particular force to children not yet born, since their actual needs and circumstances obviously can't be known in advance.
Where This Question Tends to Come Up
This question most commonly comes up in the context of a marriage contract or cohabitation agreement signed before any children exist, where a couple might want to address, in advance, how they'd approach parenting if they do have children later. It's generally less relevant to a typical separation agreement, which is usually drafted when a couple already knows their actual family situation at the time of separating.
What Can Generally Be Addressed Instead
While specific, binding parenting terms for not-yet-born children generally aren't reliably enforceable, a couple can generally express general intentions or values — for example, around topics like religious upbringing or education philosophy — understanding that a court would still generally review and could override such terms if a dispute arose later and the terms didn't serve the child's actual best interests at that time.
Property and Support Provisions Work Differently
This limitation is specific to parenting-related terms. Provisions about property division or spousal support can generally be addressed more definitively in advance, even anticipating future circumstances to some degree, since those issues aren't governed by the same best-interests standard that applies specifically to children. See our guide to marriage contracts for how these different categories of terms are generally treated.
Frequently Asked Questions
Can parents lock in a parenting plan for a child who isn't born yet?
Not reliably as a binding term — parenting arrangements are generally always subject to the best-interests-of-the-child standard assessed at the relevant time, which a court can generally revisit regardless of an earlier agreement.
Why can't parenting terms be permanently fixed in advance?
Because the law generally prioritizes a child's actual best interests at the time they matter, which can't be fully known or guaranteed in advance, especially for a child not yet born.
Can a marriage contract address future children at all?
It can generally express intentions or general approaches, but specific, binding parenting terms generally remain subject to later review under the best-interests standard.
Are property and support terms for the future treated the same way?
Generally not — property and support provisions can generally be addressed more definitively in advance, since they aren't governed by the same best-interests standard that applies specifically to children.
Should we still discuss future children in our agreement, even if it's not fully binding?
It can still be worthwhile to document general intentions, understanding the legal limits — worth discussing with a lawyer so expectations are realistic from the start.