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Last month, The View co-host, Sherri Shepherd, and her husband, Lamar Sally, filed for separation in California after nearly three years of marriage. The twist to this story is the custody battle over their unborn child. But Shepherd herself is not pregnant - the couple hired surrogate mother who is due in July. Each spouse is filing for sole custody, but Sally is also requesting for Shepherd to only receive 'reasonable' visitation rights and for the baby to be immediately delivered to him after birth.

According to TMZ, Shepherd may be holding a trump card in this dispute - the couple has a prenup that allegedly gives her full custody of the unborn child. Currently, Sally is attempting to have the contract voided on the grounds of fraud, but his chances of success are unknown.

The potential effect of the prenup's custody agreement is intriguing if it is enforceable in California. We wonder the same about its legality here in Canada.

In Ontario, the provision in the prenuptial agreement granting Shepherd custody of the unborn child would be legally unenforceable under the Family Law Act. Section 52(1)(c) prohibits parties intending to marry from entering a marriage contract that would dictate their rights and obligations relating to the custody and access of children upon separation. The situation may be different if there is a surrogacy contract as the FLA prohibition only covers marriage, domestic, cohabitation, and separation agreements. If Shepherd and Lamar have a custody agreement dealing with divorce or separation as part of their surrogacy contract, that agreement might be enforceable.

Regardless of whether a surrogacy custody agreement exists, issues of custody in Canada must be determined based on the child's best interests. Given the fact that the child will be a newborn at the time of any order, the court would likely focus on the following factors included in s. 24(2) of the Children's Law Reform Act:

  • the parents' ability and willingness to provide guidance and education, the necessities of life and any special needs;
  • their individual proposed plans for care and upbringing;
  • the permanence and stability of the family that the child will live with if granted custody;
  • their ability to act as a parent; and their relationship by blood or adoption order to the child.

Sally may attempt to undermine Shepherd's claim to custody in light of her estranged ex-husband's recent public statements that she has been neglectful of Jeffery, her autistic 9-year-old son, due to her work schedule . If Sally can prove these allegations are true, it might be relevant past conduct under CLRA s. 24(3) as it would demonstrate a lack of parenting ability that could negatively impact the baby if Shepherd were granted custody. He would need substantial evidence of neglect and its detrimental effect on Jeffery to be successful. In this situation, the claim of neglect is likely insubstantial based on publicly available information lauding Shepherd's long standing dedication, support, and love for her son.

Since a newborn is quite young, the court might consider a temporary joint custody arrangement if the parents are level-headed enough to cooperate and make important decisions together for the baby's sake. Such an order would be motivated by the maximum contact principle under the Divorce Act which encourages healthy contact between a child and both its parents. If joint custody is not a viable option, the courts may want to facilitate maximum contact in a sole custody arrangement with generous access to foster bonding between parent and child.