Monday, November 12, 2012

Waiver of Child Support ?


            You have requested for me to research and locate any authorities which control a couple’s ability to contract away an obligor parent’s past or future child support responsibility.


            Our client is an architect from New Mexico and she has been here in Fairbanks, Alaska, since May. She had a relationship with said father during this time and conceived a child. Mary’s job has ended and she will be returning to New Mexico. She earns no less than six-figures per year and is financially capable of supporting/raising the child alone. Mary has spoken with the father of the child and he agrees to pay $5000.00 in cash to help pay for the pregnancy and birth of the child. He has furthermore agreed to not having any natural parental rights to this child. In lieu of this agreement, he wants no child support obligation for past or future for the child. Mary has agreed and is now seeking legal service to execute the contract.


In the Alaska State Statue, AS 25.27.065, it does say the custodian of a child, including custodial parent, owes a duty to child that child support is paid, by noncustodial parent. An agreement to waive past and future child support by custodial and noncustodial parents is not enforceable unless:
1.      the agreement is put in writing at the time the agreement is made; and
2.      the agreement is signed at the time it is made by both the obligor and the person acting for the obligee.
Further into the statute, AS 25.27.065(b)(c), does imply this type of an agreement would not be enforceable if custodial parent was on welfare. Moreover, if our client and said father were seeking separation, dissolution, or divorce in a proceeding, the court would want proof from the custodial parent that they could support the needs of the child. Since our client Mary isn’t on welfare, currently not married, the statute does prove to have legal strength for the congenial agreement between parties in reference to child support. 
In, Cox v. Cox, 776 P.2d 1045, 1048(Alaska 1989), the above statute was cited in this case to strengthen the point that custodial and noncustodial parents should not be allowed to enter into an agreement where child support is concerned to evade the operation of Rule 90.3. Quoted from the brief:
Thus, the mere fact that an agreement may comply with this
statute does not mean that it is free from the operation and effect
of Rule 90.3. Our holding that parties cannot by contract evade
the operation of Rule 90.3 therefore does not conflict with this statute.

The Alaska Rules Civil Procedure Rule 90.3, Commentary V (B)(1), does state:
Agreement of the Parents: The fact that the parties, whether or not
Represented by counsel, agree on an amount of support is not reason
in itself to vary the guidelines. The children have an interest in
adequate support independent of either parent's interest. Thus,
approval of any agreement which varies the guidelines, whether in a
dissolution, by stipulation or otherwise, must be based upon an
explanation by the parties of what unusual factual circumstances
justify the variation.

Given the civil rule above, it does appear that even though the parents of said child have reached a satisfactory agreement between each other, is not necessarily an agreement the court would find in the best interest of the child. The court would have to rule on the agreement based off of Civil Rule 90.3.
            In the Civil Rules Procedure 90.3, Child Support Awards in summary are the guidelines for the Alaska court to determine child support based off of the best interest for the child or children. The guidelines were written in order to try to encompass most situations of child custody between the custodial and noncustodial parent, based off of financial needs of the child or children.
            Rule 90.3 is detailed about establishing child support and clarifies in the commentary that even though parents enter into an agreement themselves, the agreement has to be approved by the court. But in the Alaska State Statue, AS 25.27.065, it does give the impression our client does meet all of the requirements for the exceptions.
            After doing the research to locate authorities as you requested, it does appear the court would not look favorably upon an agreement made between a custodial and noncustodial parent to avoid past and future child support, since child support is a payment that a noncustodial parent makes as a contribution to the costs of raising her or his child. Moreover, within the AS 25.27.065, it does appear that our client’s situation does meet the enforceable requirements for the waiver of child support, but if brought before the court it would be debatable that the agreement would be held as so.
            I believe I have addressed your request to locate any authorities which control a couple’s ability to contract away an obligor parent’s past or future child support responsibility, based off of the resources available.


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