Celebrity Trends: Baby Pre-Nups?

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I almost spilled my coffee when I read the headline that Halle Berry was pregnant at 46 years of age – not because of her age, but because of the catch-phrase that followed:  baby pre-nup.  I have never heard of an agreement defined in such a manner.  Pre-nuptial agreements: yes.  Pre-baby agreements…never!

The news was buzzing when Berry confirmed her pregnancy with French film actor, Olivier Martinez.  Berry, an American film actor who was once ranked as People Magazine’s No. 1 “Most Beautiful People in the World,” already has one daughter from her former relationship with French-Canadian model, Gabriel Aubry.  Her protracted child custody battle with Aubry received much attention in the media.   Her request to move their daughter to France (Martinez’s country) was denied by the courts.  The parties finally were able to resolve their custody disputes, but not until after Martinez and Aubrey notoriously got into an altercation and ended up with black-eyes and mutual restraining orders against each other. 

This time around Berry is also not wed to the baby’s father, but she is planning for any foreseeable problems in the future.  It has been reported that she asked Martinez to sign a baby pre-nuptial agreement, ensuring that he pay her a designated amount in child support, in the event that they split.

In the State of California, each parent has “equal responsibility” to support minor children.  Despite an agreement that Berry may request Martinez to sign, it does not divest the court of its jurisdiction to make child support orders on the child’s behalf in custody or parentage proceedings.

It does not matter that Berry and Martinez are not married.  In California, all minor children are owed a duty of support from their parents regardless of marital status.  In fact, married individuals may have a statutory duty to pay support even when the minor children are not their biological offspring.

There is a compelling state interest in establishing paternity for all children.  Establishing paternity is the first step towards a child support award, which gives children equal rights and access to benefits of both parents.

If Berry and Martinez were married, Martinez would be considered the presumptive parent under the Family Code if he were cohabiting with Berry at the time of conception (and not sterile).  The only way to rebut a “presumed parent” status is to show impotence or sterility at the time of conception or use blood test evidence that he is not the father.  Blood test rebuttals must be made within (2) years of the child’s birth.

Since Berry and Martinez are not married, his parentage may be established through a declaration of paternity upon birth.  Since January 1, 1995, the person responsible for registering live births is required to provide to the man, identified by the natural mother as the natural father, a voluntary declaration of paternity, which will trigger the duty of support.  Currently, this declaration has the effect of a judgment and is not subject to a presumed parent rebuttal, as stated above.

Talk of Berry’s pre-baby agreement may just be fiction:  a sensational celebrity news story to generate more talk.  In any event, any type of pre-baby agreement, whether pre-marital or during the marriage, cannot restrict either party’s statutory child support obligations, nor can it restrict the Court’s jurisdiction to resolve any issues involving child support in the future. 

Michele Corvi is an attorney with McManis Faulkner.  Her practice focuses on all aspects of family law, including child custody and visitation, move-aways, domestic violence, child support, spousal support, valuation of property, and division of assets. For more information, please visit mcmanislaw.com.

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