ASSIGNMENT
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.
STATEMENT OF FACTS
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.
ISSUE(S) PRESENTED
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.
SUMMARY OF LAW
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.
ANALYSIS
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.
Conclusion
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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