Cohab/Prenupt Agreement (existing children, new children)

[involveddad75]

Mess recently posted a sample Cohabitation agreement, it is quite well written. But doesn't cover existing children or new children of the relationship.

What does one write in an order with regards to existing children.

Situation 1: Male has two children (50% of time) and Female has two children (60+% of time)

What does one write in an agreement such that either parent can come after the other for child support in the event of relationship brake down.

Situation 2: New child of relationship?
The sample cohab agreement talks about the parties agreeing not to follow or opt out of the acts.
If these two parents are wanting to have another child, can they opt out of the family court system altogether? and state that they firmly believe that in the event of a relationship break down that the child of the relationship shall benefit from joint custody and have 50% access with both parents as a starting point and that neither parent can bring a motion in court varying the agreement without written consent of the other parent?



Any thoughts? Tayken, Mess, OrlenesLawyer? anyone else.

[FightingForFamily]

The law (the acts) trumps the agreement every time as soon as one party takes it in front of a judge.

Even if the parties signed an agreement opting out of the acts, that clause would be ignored if it was shown to be unconscionable (aka unreasonably unjust to one of the parties) to do so.

You can still include such clauses in an agreement as a statement of *intention* but as soon as the circumstances changed they would not be enforceable.

For example, each parent can claim they will not act in loco parentis to the other's children... But fast forward 10 years later if they are separating. One party may still be able to prove the other party acted in loco parentis even if they didn't intend to at the beginning. Because you know, relationships change over time and stuff happens.

However if the party signed the agreement and then diligently avoided acting in loco parentis, they may "dodge that bullet". Such as:

-Instructing and correcting the children to call them by name only.
-Referring all discipline back to the bio parent.
-Not paying for expenses that could construed as the children's.
-Not participating in school, medical, etc appointments.

[OrleansLawyer]

these two parents are wanting to have another child, can they opt out of the family court system altogether? and state that they firmly believe that in the event of a relationship break down that the child of the relationship shall benefit from joint custody and have 50% access with both parents as a starting point and that neither parent can bring a motion in court varying the agreement without written consent of the other parent?

Short answer: No.

The courts always have jurisdiction. If one parent is saying joint custody would not be appropriate, they will argue the best interests of the child are sole custody and therefore that part of the agreement should be set aside.

It would indicate an intention, but would not extinguish a claim alone.

What does one write in an agreement such that either parent can come after the other for child support in the event of relationship brake down.

"Husband acknowledges children of Wife Adam Bob and Charlie as like his own children, and takes on the responsibilities of a parent for them, in locos parentis."
"Wife acknowledges children of Husband Alice Betty and Carly as like her own children, and takes on the responsibilities of a parent for them, in locos parentis."

Add in more about how child support will be paid, although the Guidelines are always a safe fall back.

Please note, I have responded to the question as posed. This may not be the question you wanted to ask.

[involveddad75]

You are correct, how do we make an agreement that bans either parent father or mother from coming after existing children after separation.
I realize that with any new children both parents would be responsible to support that children, but either parent wants to support the others existing children.

[FightingForFamily]

A bit of a necropost. What does everyone think of the following wording?

NO FINDING OF “IN LOCO PARENTIS”

Both Party1 and Party2 have discussed the concept of “in loco parentis” in the context of their relationships with each other’s natural children. Neither of them declares any settled intention to become a parent to the other’s children.

Specifically:

-They will not adopt the children, change their names, and prefer to be called by name rather than as Mom or Dad.

-They agree that the natural parents of each child remain the sole authority when it comes to making important life decisions regarding their children, including educational, religious and medical decisions.

-They agree that each party is solely responsible for financially supporting their own natural children. This includes but is not limited to:

Educational costs
Daycare costs
Child support payable to former spouses
Health care and dental costs
Day to day expenses such as clothing, toys, toiletries, allowance and gifts

-Each party assumes no responsibility for financially supporting the natural children of the other party.

-With respect to shared family expenses, each party shall contribute proportionally with consideration given to each of them paying their own natural children’s share of the expense.

Party1 and Party2 understand that under family law, children have the right to financial support from their parents. It is their agreement that each of their children is already being supported in full by their natural parents and that there is no need or obligation being assumed that would require them to seek child support from each other in the event of a breakdown in their relationship.

[takeontheworld]

Its a shame this is what it has come to. Not sure how you could ever blend a family with such restrictions.

[involveddad75]

I am a caregiver for my girl friends children, she parents them and makes decisions about them. She even communicates with the children's father before making major decisions. I could never replace their real father nor would I try to. But I am a positive influence in their lives and care for them.
The same is reversed when talking about my children.
She doesn't go to my teacher interviews and I don't her's even though they are the same school.
As for the child we are having together, we would then parent that child together.
Case in point her children have always gone to bed later, were as I have put my children to bed earlier. Its the differences in parenting.

[Rioe]

It's so easy to promise that sort of thing at the start, and even intend it to be true, but time and circumstances are so hard to predict.

What happens if the bio-parent falls horribly ill on a parent-teacher night and asks step-parent to go instead? What happens if your bioparent loses their job or has an unexpected expense, and step-parent kindly helps out for a while to pay for things for the kids? What happens if the kid starts calling you Dad of their own volition, no matter what you claim to prefer? What happens when you provide advice to the bio-parent about a major decision simply because you have more expertise in that area and they choose your recommendation?

When it comes to court and a finding of in loco parentis, a judge is going to go by what actually developed during the relationship, not what you had intended to do at the start of it.

And say your incomes are very very different, in the 90-10 range or something. So you live in a very nice house and have very nice things. Suddenly the children are going to have to lose all that simply because their bio-parent broke up with their step-parent? Why should they suffer for a decision they had no control over?

You can be as black and white as you want in the beginning. It's going to turn out grey.

That said, I don't personally like in loco parentis, but I can see the need for it in some cases. I believe, though, that a big test for it should be if the former step-parent gets any access. Not that access should equal money, but if the step-parent cares enough to want to continue to see the child, or that the child would be devastated not to see the step-parent any longer, that should be what it takes to prove the in loco parentis.

[DunnMom]

Agree ...

Its a shame this is what it has come to. Not sure how you could ever blend a family with such restrictions.

I 100% understand the reasoning behind the OP's question and believe it's totally valid ... HOWEVER ... it is such a sad statement of what a marriage, partnership, domestic relationship or whatever u want to call it has become

And if anyone thinks or believes that either a) any kind of "contract" will stand up in family court if things go south or b) that they can truly form any kind of meaningful "family" relationship with this type of "contract" , well please PM me cause I have some swampland in FLA you might be interested in

[stripes]

Or you roll the dice and take your chances. Is it possible that the great love of your life right now might someday turn evil and try to get money out of you to support her kids? Of course, people change, and that's the risk you're running if you want to move in with your great love. It's also possible that your house might burn down and you might get get SARS. You can't protect against all possible bad outcomes.

Of course, if you're thinking that there's a chance you might actually want to use this extra-legal non-enforceable no-loco-parentis agreement someday, that should be a sign that you should rethink cohabitation.

[FightingForFamily]

When it comes to court and a finding of in loco parentis, a judge is going to go by what actually developed during the relationship, not what you had intended to do at the start of it.

Absolutely, I understand and agree with this. However all elements of prenups and cohabitation agreements are vulnerable to this. As we have seen, both good and bad events can happen that can make a previously reasonable agreement turn "unconscionable". Everything from division of property to spousal support waivers have been overturned by the courts.

A statement of intentions doesn't protect completely against a future claim, but it does give evidence for a justice to consider. This IMO is better than hearing in court one day "he promised to look after me and the children forever" when it isn't true and trying to disprove it after the fact.

In my particular case, neither of us have full custody of our kids and they spend at least half of their time with their other parents. We both make a similar income, and we both pay child support to the other parents. Under the current circumstances, there wouldn't be much of a claim for in loco parentis.

If circumstances changed drastically as you described, then people have hard decisions to make.

And say your incomes are very very different, in the 90-10 range or something. So you live in a very nice house and have very nice things. Suddenly the children are going to have to lose all that simply because their bio-parent broke up with their step-parent? Why should they suffer for a decision they had no control over?

The step parent didn't necessarily have any control over the decision of the bio parent to end things either. Why should the step parent pay for a decision (someone else's kids) they had no control over?

[mcdreamy]

FFF -- I might add to your draft wording --

"each party or their personal representative may make any payment or payments to the other party not provided for herein, on an ex gratia basis. No such payment(s) shall be so construed so as to oblige the said party or their personal representative to continue them, nor shall they be pleaded, tendered or given in evidence or raised by way of estoppel by the other party in any legal proceedings between the parties hereto."

This is just from practical experience -- sometimes I put more cash than my proportionate share requires into a project around the household, but I don't intend to be bound in the future to contribute more than my proportionate share if I choose not to.

[FightingForFamily]

It's also possible that your house might burn down and you might get get SARS. You can't protect against all possible bad outcomes.

I buy house insurance to protect my assets against fire. I pay taxes for health care to give me the best possible chances of surviving SARS. You can't get absolutely protect against all bad outcomes, but you have to do what you can to mitigate the damage and manage those misfortunes the best way you can.

Of course, if you're thinking that there's a chance you might actually want to use this extra-legal non-enforceable no-loco-parentis agreement someday, that should be a sign that you should rethink cohabitation.

Trust me, working on a cohab really does make you think about and understand exactly what you are taking on. Even going through the exercise is much better than simply "shacking up" and hoping things will work out.

[involveddad75]

I 100% understand the reasoning behind the OP's question and believe it's totally valid ... HOWEVER ... it is such a sad statement of what a marriage, partnership, domestic relationship or whatever u want to call it has become

And if anyone thinks or believes that either a) any kind of "contract" will stand up in family court if things go south or b) that they can truly form any kind of meaningful "family" relationship with this type of "contract" , well please PM me cause I have some swampland in FLA you might be interested in

The point is both of us and made it clear that neither of us wants to be responsible for the other's children, we both believe that in this day and age the courts will make that happen unless we act and set out our intentions in the beginning.

It is a sad state then two adults meet and want a relationship that government steps in when things fall apart and orders things that one had no intention of providing.

I have my own children to provide for and she has hers, neither of us want to be on the hook for the others children.

[FB_]

The point is both of us and made it clear that neither of us wants to be responsible for the other's children, we both believe that in this day and age the courts will make that happen unless we act and set out our intentions in the beginning.

It is a sad state then two adults meet and want a relationship that government steps in when things fall apart and orders things that one had no intention of providing.

I have my own children to provide for and she has hers, neither of us want to be on the hook for the others children.

Well remember you can agree to whatever you want if/when you breakup. The problem arises when one of the parties changes their mind and doesn't want to be accountable for what they signed. (Gets greedy perhaps)