Can I trade Child Support for Parenting Time?
The question is, can one parent essentially trade child support for parenting time? Often time we get asked a question of if I give up my parenting time, or maybe one parent offers to not have the other parent pay if they agree not to see the child, or something along those lines. Have you ever come across a situation like that, and what’s your experience with it?
This can come up in two different ways, and it comes up all the time. You have it come up in the context of severance. You will have non-custodial parents … more often than not, it’s been the father, but that’s just because mothers from a statistical standpoint are the primary custodians more often … they’ll say, “Hey, I will sever my rights. I will agree to have my rights severed if you don’t charge me child support.” In Arizona, you can’t sever your rights voluntarily unless there’s someone else ready, willing, and able to adopt the child. So, that’s not going to work, but when I was with the Attorney General’s office I would hear that all the time. People would get served with child support paperwork, enforcement paperwork, and they would say, “Hey, you know what? Where do I sign? I haven’t had contact with this child in years, I’ll just sever my rights so I don’t owe any money.” Unfortunately, it doesn’t work that way.
The other context isn’t severance, it’s just parenting time. What’s commonly known as visitation. The parties, who obviously don’t hold each other in very high regard, will sit and say, “You know what? You agree not to see the child, I’ll agree to not take any child support from you.” The problem with that is that the child support is essentially for the child. It’s the benefit of the child. Really, these are parents making decisions with their own best interests in mind, not necessarily the best interests of the child.
Generally speaking, these sorts of deals are not going to be condoned by the court. The law of the State of Arizona is that every parent has a duty to support their child. To overcome that duty is a very, very high burden even if the person who has primary custody doesn’t quote/unquote “need” the money. It isn’t about whether they need the money, it’s for the child. The courts will often say, “Well, if you don’t want to use, don’t use it. Just put it in an account. Save it for the child when they get older, college account, that sort of thing.” The seminal case on this goes back to 1990. What it said is the parties can make these sort of arrangements, but they’re not binding on the court. If they come to court and say, “We’ve made this deal, we want you to approve it. Stop the child support. Change the parenting time to zero days.” The court is not often going to take that, because they’re going to find that that agreement is not in the child’s best interest.
|Scott Stewart:||What about a situation where … I know this is more common, where for whatever reason the parents will deviate. Both parents are involved and maybe there should be some support, maybe nominal. Most of the time, my experience is that we see this when support might be $50, $100 a month or something like that … where the parents will agree to deviate to zero support being paid. The courts will often times say that’s okay, won’t they?|
|Jennifer:||They do. They do. A lot of it is just in your terminology. As an AG, I used to have to sign off on private party agreements. I could not sign off on an agreement that traded parenting time for child support, because it is seen as being against public policy. My job as an Attorney General was to uphold the highest policy positions for the public. If I got an agreement that was deviation to zero, and some other reason was articulated for the deviation to zero, and both parties had signed off on it, I could sign that agreement. It could have been that behind the scenes the real reason was because of an agreement between the parties to trade it for child support, but since that isn’t what was on the agreement it was something that I could sign. I think it happens a lot and is just made easier to approve of by calling it something slightly different. That does happen, and the courts routinely approve deviations to zero.|
|Scott Stewart:||The big issue comes with … everybody just agrees to this deviation and now, whether it’s one day or one year down the road, something happens. The parent that was supposed to be getting child support, if they file to modify so that support’s being paid, are they stuck with the same basic requirements of when there isn’t a deviation of change in circumstances or income or anything along those lines?|
|Jennifer:||Any modification of an order is going to be prospective only. You cannot, as a matter of public policy, make child support non-modifiable. If you do have one of these arrangements where you agree to deviate to zero, for whatever reason, it’s always going to be modifiable but it’s going to be prospective only. If you have a change in circumstance, and I have had that come up many times in my career, where somebody agreed to a deviation to zero … maybe because their financial situation was such that they didn’t necessarily need the child support from the other party and the other party’s financial situation was such that they really didn’t have a lot of money to give in the first place … and then things flip-flop. The receiving parent loses a job or has a health crisis, and the paying parent has gotten on their feet and is in a better place. They have often been brought back to court. When there is an objection by the paying parent saying, “Wait a minute, we have this agreement,” the court references … there’s two statutes, actually, that say that all orders are modifiable prospectively. There’s always the opportunity to change it, if you do have an agreement to modify it to zero.|
|Scott Stewart:||Parents need to be aware that you can literally make an agreement today to deviate to zero, and tomorrow, because child support is prospectively calculated, the other parent can go and change that.|
|Scott Stewart:||That’s something for everyone to be aware of, certainly. In our respective practices, I know we get asked a lot of times will our clients agree to this or that. As you said earlier, on paper it may be written so that it will get signed off on without much scrutiny, but the reality is behind the scenes there’s often some type of unwritten agreement or understanding between the parties. I think it’s important that all parties be advised that, hey, that may happen to today but tomorrow your child support could go up to what the guidelines say it should be, which could be substantial.|
|Scott Stewart:||Wow, that’s an important thing not to overlook for an attorney or, certainly, for somebody that’s looking at paying or receiving child support. Jennifer, I thank you again for your time and look forward to the next time that we get an opportunity to speak about Arizona family law, child support, and child custody. Thank you very much.|
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