Void Child Support Agreements (Too bad so sad)

The Facts

A mother lives in California and retains legal custody of her son, who lives in Florida with the father.  The mother and father signed an agreement that was very much similar to this:

“Mother and father retain joint legal custody of minor.  Father promises to provide health insurance for minor.  Father shall not pursue any child support for minor.”

Years pass.  Dad fails to procure health insurance for son.  When son gets sick he fraudulently used mom’s social security number to get health care for the son.  A few weeks ago, days apart, mother is served with an order to show cause for child support; then is served with a lawsuit from a Florida agency demanding payment for health care related to minor. 

Mom says, “no problem, I have a letter right here requiring dad to pay for health care and agreeing not to collect support.”  Oh, boy.

Agreements Purporting to Limit Child Support Are Void

Many parents enter into agreements attempting to limit child support.  Courts encourage settlement agreements—even those regarding child support.  However, “such agreements, to the extent that they purport to restrict the court's jurisdiction over child support, are void as against public policy.  In re Marriage of Bereznak & Heminger, (2003) 110 Cal. App. 4th 1062, 1069. 

So does the agreement prevent the mom from having to pay child support?  Nope.  In fact, many parents out there who have valid claims to collect child support for their children falsely believe that formal and informal agreements like the one here stop them from filing an order to show cause for child support.  If a parent is not collecting child support, significant time has passed since the support started, or circumstances have significantly changed in any way—the parent should have an attorney evaluate any claim for increased child support that may exist.

Legal Custody and Healthcare Costs
Under Family Code § 3085, the court may grant joint legal custody and contemporaneously grant sole physical custody.  Generally speaking, parents with legal custody are responsible for the liabilities of their children.  

In this case, since mom has partial legal custody, she is responsible for making major decisions regarding her son—and also responsible for debts incurred by her son.  Even though the dad incurred healthcare costs and committed fraud while doing so, she is liable for the costs.  Mom will most likely have to pay the medical bills and assert a breach of contract claim against the father for the amount she already paid.

How to Avoid This Mess

This mess illustrates why it’s a good idea to get a family law attorney involved even if the parties are amicable.  Even if the parties draft agreements resolving the matter—they may not be enforceable.  In addition, parties may want to include the provision of healthcare in any court order so that it’s enforceable under contempt of court instead of simply under the principles of contract (which aren’t all that helpful).  Just ask this mother.