Honoring Parental Agreements Between Divorced or Never-Married Parents

A recent article in The New York Times argues that divorced and never-married parents have, in a sense, lost their right to choose how they want to parent. A 1936 New York State Court of Appeals opinion gives "[t]he vast majority of matters concerning the upbringing of children . . . to the conscience, patience, and self-restraint of [the parents]." But, as Robert Emery highlights, divorced or never-married parents do not get the same discretion from the legal system. In fact, "[j]udges routinely decide where the children of divorced parents will attend school, worship and receive medical care."

Why the difference in treatment between married parents and those who are divorcing or separating? Emery notes that "the law assumes that divorced parents' interests in their children, unlike the interests of married parents, are not aligned." This leads to circumstances where judges are deciding issues pertaining to children, even if the parents have come to a prior agreement on those issues. It also leads to instances in which parents advocate for parenting arrangements that may not be in the best interests of the child at the time, simply to preserve a later claim for parenting time.

To help remedy this disparity in treatment, Emery suggests that "[s]tates should add parental agreement to the list [in best interests of the child standards], and make it the primary consideration." This could help give responsible separating or divorcing parents who can come to such agreements more say in the process. Emery also posits that by honoring parental agreements, courts would be encouraging collaborative, rather than adversarial, parenting relationships.

Riley Combelic is a third-year law student at the University of Denver Sturm College of Law and contributes to IAALS Online. Please direct inquiries about this post to iaals@du.edu.