James Andrew Miller wrote a compelling op-ed piece in the New York Times, theorizing that expensive and heart wrenching custody battles could be avoided if parties intending to marry, merely entered into a pre marital agreement. He details the understandable outrage of friends, told by their soon to be ex-spouses that they would be allowed to have visitation with their children.

However, what Mr. Miller ignores is that parties can contract to virtually any issue of the marriage except child custody and support. Any provisions would be contrary to public policy and would be unenforceable.

 Child custody is based upon the best interests of the children.   It would be virtually impossible to make a best interests determination when the parties are first getting married and before children are even born. For this reason, a custody determination should only be made at the time parents elect to divorce.