By James W. Cushing
Special to the Legal
When litigating a family matter, which generally involves the intersection of divorce, support and custody matters, practitioners and parties often try to find creative solutions to very sticky problems, many of which can have a significant impact on a person’s life. One way to attempt to bring a family matter to a resolution that some attorneys and parties consider, or even try, is to negotiate the payment of child support in consideration of gaining bargaining rights or negotiation room on some other issue, such as child custody or property distribution.
Agreements regarding the elimination of child support are generally found in matters where one parent is willing to give up all or almost all of his or her right to custody in exchange for being released from any obligation to pay support. For example, a common contract is for the custodial parent (most often the mother) to agree to not seek child support from the noncustodial parent in exchange for the noncustodial parent (most often the father) not seeking custody of the child.
Pennsylvania courts have, for the most part, deemed any agreement to bargain away a child’s right to support as against public policy and unenforceable; however there are a couple of exceptions. Pennsylvania courts have found, time and again, that a child has a right to receive child support and that a parent does not have a right to enter into a contract to avoid ensuring the support of that child. It should be noted, also, that the court has found (arguably through dicta) that, generally speaking, one cannot bargain away child support for a child resulting from a sexual relationship of any kind, including those involving so-called “one-night stands,” adultery or accidents (including when the woman deceives the man regarding her contraception use).
Despite the above, however, the courts have been consistent in ruling that men who donate sperm to allow for conceptions which are the result of anonymous and artificial insemination are, by definition, free from the obligation to pay child support. Similarly, and rather interestingly, the court recently ruled that men donating sperm for artificial insemination do not have to remain anonymous to the recipient of that sperm in order to be free from the obligation to pay support to the resulting child(ren). As long as the insemination process follows standard clinical procedures, the sperm donor will be free from the obligation to pay child support regardless of whether his identity is known to the mother.
Aside from artificial insemination, the only exception to the general ban on contracts that bargain away child support is an analysis into whether the child(ren) at issue are actually being supported without the potentially requested child support. The court has implied that the rule is not that one cannot bargain away child support but whether one can bargain away “adequate” child support. Of course, precisely what makes support adequate is decided on a case-by-case basis and depends on the economic realities for all of the parties involved. Therefore, a noncustodial parent can be released from the obligation to pay child support so long as the contract to do so was fair and reasonable, without fraud and coercion, and, most importantly, does not prejudice the welfare of the child(ren) at issue.
For example, say a woman has a child by one man out of wedlock but ultimately marries another man. Her husband is financially able to, and actually does, support his wife’s child from the other man. The woman and father in this scenario can enter into an agreement to release the father from the payment of child support so long as the child is adequately supported; therefore, the agreement will be enforceable against the establishment of a child-support order as long as this is the case. However, as soon as the husband discontinues the support of the child (say because of the divorce of the husband and mother) the agreement to release the father from a child-support obligation becomes unenforceable. The central issue of analysis is this: Is the child adequately supported by the custodial parent or some other source, absent the potential child-support order? If yes, then an agreement to bargain away child support is enforceable.
Cases to consider regarding the issues addressed in this article include: Miesen v. Frank, 361 Pa.Super. 204 (1987); Roberts v. Furst, 385 Pa.Super. 530 (1989); Kesler v. Weniger, 744 A.2d 794 (Pa.Super. 1999); and Ferguson v. McKiernan, 596 Pa. 78 (2007).
James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia.
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