Often, one parent forces the other parent to use child support as a bargaining chip during contract negotiations. For example, during a divorce, one parent may promise the other parent a larger settlement amount if the parent entitled to child support waives his/her right to demand child support in the future. The parent entitled to child support may feel pressure to forgo child support in order to obtain a lump sum payout, which would enable him/her to handle immediate expenses, such as the cost of relocating after the sale of the marital residence, attorneys fees, or to help the child transition through the divorce. The agreement to waive the right to demand child support, however, will not be enforced in Pennsylvania.

Why? Because the right truly belongs to the child, not the parent. Child support is intended to simulate a situation where the parents remain in an economic partnership. In other words, a child should not be economically prejudiced because his/her parents are not conforming to a traditional marriage arrangement (i.e., separated, divorce, or never married at all). Therefore, in reality, the right to demand child support belongs to the child and is merely exercised by the entitled parent. A parent can opt to not demand child support, but he/she can never completely waive the right to demand support in the future.

The Supreme Court of Pennsylvania stated:

“Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests, . . . They have no power, however, to bargain away the rights of their children, . . . Their right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short. Their bargain may be eminently fair, give all that the children might require and be enforceable because it is fair. When it gives less than required or less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court’s wide and necessary powers to provide for that best interest. . . . [The parties bargain] is at best advisory to the court and swings on the tides of the necessity that the children be provided.” Kraisiner v. Kraisiner 928 A.2d 333 (Pa.Super. 2007) (citing Knorr v. Knor, 527 Pa. 83 (1901)).

In Blizzard v. Mehaffie,  a 2009 decision by the Court of Common Pleas of Adams County, Mother and Father, who both lived in Maryland, had a child. In 2000, Mother and Father entered into a custody agreement because Mother was going to marry a third-party who planned on adopting the child. The agreement explicitly released the Father’s obligation to pay support for the child. The third party never ended up adopting the child and later the Mother and the third party divorced. Mother then moved to Pennsylvania and, because her financial circumstances had changed, she sought child support in Adams county. Mother was awarded support, which Father contested. He based his appeal on his waiver in the Maryland agreement. The Court of Common Pleas in Adams county held that the agreement, which was formed under Maryland law, was contrary to established Pennsylvania public policy and therefore our system would not give the Maryland agreement “full faith and credit.” Thus, Father was required to pay Mother child support to aid in the care of the child.

Remember, the right to child support belongs to the child and, therefore, no parent can forfeit their power to demand child support.  If you or a loved one have any questions regarding child support or a divorce settlement, please contact me directly at mhovey@gmail.com.  Thank you.

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