Can Parents Waive Their Parenting Time Rights to Avoid Paying Child Support?

The Indiana Supreme Court decided Perkinson v.  Perkinson,  (2013) which reaffirms the rule that you can’t trade parenting time for support.

The Mother entered into an agreement in which Father agreed to waive his parenting time rights in exchange for Mother assuming sole financial responsibility and waiving enforcement of Father’s child support arreareage.  The agreement also set out that if Father sought parenting time in the future, “he shall be obligated to pay any support arreareage through the date of the approval” of the agreement by the trial court. The agreement was approved by the court in March 2006.  Two years later, the father petitioned for parenting time.  The Supreme Court noted:

“It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support. It has long been established by this Court that “[a]ny agreement purporting to contract away these [child support] rights is directly contrary to this State’s public policy of protecting the welfare of children.” Straub v. B.M.T., 645 N.E.2d 597, 600 (Ind. 1994). See alsoTrent v. Trent, 829 N.E.2d 81, 86 (Ind. Ct. App. 2005). In Halum v. Halum, 492 N.E.2d 30, 33 (Ind. Ct. App. 1986), the Court of Appeals held that a “custodial parent may not bargain away the children’s right to support.” Such agreements between parents are void as a matter of public policy and our trial courts should be very careful not to allow the results which occurred in this case.

Even if it is not in a child’s best interest to visit with a parent, it is still in that child’s best interest to be financially supported by that parent. “It is well established that the right to child support lies exclusively with the child and that a custodial parent holds the support payments in trust for the benefit of the child.” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind. 2013) citing In re Hambright, 762 N.E.2d 98, 101 (Ind. 2002); Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind. Ct. App. 2010), trans. denied. Custodial parents who receive child support funds act as a trustee, and, “as a constructive trustee, [the custodial parent] may not contract away the benefits of the trust.” Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997). To do so would violate the fiduciary duty the custodial parent owes the child in relation to any child support funds.

Furthermore, the clause of the agreement purporting to obligate the Father to pay any support arrearage if he sought parenting time in the future acts to discourage the Father’s future involvement with his child. As our Court of Appeals previously held, “[v]isitation rights and child support are separate issues, not to be comingled. A court cannot condition visitation upon the payment of child support if a custodial parent is not entitled to do so.” Farmer v. Farmer, 735 N.E.2d 285, 288 (Ind. Ct. App. 2000).”

The Supreme Court reversed the trial court’s denial of parenting time in the absence of evidence of harm to the children.

Interestingly, the Supreme Court noted that “the trial court in the present case makes a finding that parenting time “would not be in the child’s best interest and would create significant emotional harm to her” but provides insufficient facts to support its finding other than its footnote asking “How do you explain to a six (6) year old that her Father exchanged time with her for money?” As horrific as that rhetorical question is, Mother agreed to it. And Mother’s attorney prepared the documentation.”

http://scholar.google.com/scholar_case?case=1693108070334521208&q=perkinson+2013&hl=en&as_sdt=4,15