Indiana trial court judges and attorneys encourage the parties to reach agreements in divorce and paternity cases. There is even a specific statute in the Divorce Act expressly encouraging custody agreements.1 However, Indiana trial court judges have a legal duty to watch over children of the marriage and ensure their best interests are met. For this reason, there are a few types of agreements the parties cannot settle for or even request the trial court to order in a contested trial. This blog addresses these four types of child-related terms the parties cannot agree to and why that is the case; however, with skilled counsel, most of the parties’ child-related issues may be drafted in a form the court will approve that do not violate public policy to help keep the parties out of litigation.
The first and perhaps most common is a prospective modification of custody if a certain event or time passes. Custody and parenting time matters must be determined based on the status of the parties and the best interests of the child at that time. If a parent might relocate out of state in the future or when a child turns a certain age, the parties cannot agree that there would be an automatic change in custody. The Court must make this determination based on an agreement or trial evidence at the time. This is because a future modification based on a given event, may not be in the children’s best interest when it occurs. These provisions—if they are agreed to and ordered by a court—are not enforceable in the future. However, as noted, there are tools counsel may assist with to partially reach this goal—to avoid litigation. For instance, the parties can always agree to first mediate future issues, if they occur, that they believe will be agreed to and then submit to the court to assess (and presumably order) if it is in the children’s best interests—but again potential future events cannot automatically trigger a modification of custody as this is against public policy.
Another common provision generally agreeable litigants sometimes seek is that neither one will pay child support to the other. However, child support is not for the benefit of either party, but rather, it is for the benefit of the child. Child support is a tool used to try to keep the child in the position financially they would be in if the parties were together. Therefore, a parent or parents cannot waive off child support as it “belongs” to the child. However, sometimes there are sound reasons that child support may be lowered and perhaps zeroed, such as contribution to uninsured medical expenses, transportation expenses for parents who live far apart and the like. This is called a Rule 3 deviation and requires a worksheet and specific findings for the deviation. If you are working toward an agreement and the right factors are present, counsel may be able to use these Rules and Guidelines to reach a lowered support amount or even zero a support obligation by the right legal theory and tools. The court may even do so if the matter is taken to trial if you, through and with your counsel, present the right evidence.
Much like it is not permissible to create an agreement to allow for an automatic change in custody based upon a triggering event in the future, it is not permissible for a parent to relinquish their right to file for a modification of custody or parenting time in the future by an agreement. Custody and parenting time are based upon several factors, which consider present circumstances. For instance, custody considers the child’s adjustment to the school and community. If there are substantial issues with the child’s schooling, this may be considered, along with other factors, to modify custody and parenting time. As an example, if the parties have a non-modification provision for custody, and a custodial parent becomes drug-addicted, this provision would mean the other parent could not modify custody. These provisions are not as commonly sought, but sometimes they are considered and even agreed to. Such provisions are against public policy–to waive the ability to petition for a change and prevent modification—and will not be enforceable in the future if a modification is sought. This is because they keep the court from considering the current situation and then deciding what is in the child’s best interests.
From time to time, a spouse receiving support would like a pre-payment of support and the paying spouse wants to avoid future court modification proceedings. However, pre-payment of child support or payment of a lump-sum for the child’s life will not prevent a modification and recalculation upon a showing of a change in circumstances, and the potentially twelve-month period between the last Order and recalculation. In fact, in some cases, if child support is paid too far in advance, the clerk will refund the funds and the payor will have to repay as Ordered, weekly or bi-weekly in most cases. Furthermore, a lump-sum payment may even be considered a gift to the spouse and child and not child support. Agreeing to any type of lump sum, prepayment, or even an inflated child support weekly child support figure only creates legal risk, uncertainty as to how this may be viewed in the future (a gift?) and may lead to more protracted litigation when these provisions or situations occur and are sought to be enforced. No agreement can keep a party from moving to modify child support under the paternity and divorce child-support statutes because child support belongs to the child and the parent receiving it is merely a trustee to use the child support for the benefit of the children.
Custody and parenting time statutes leave substantial room for negotiation and resolution of cases or for the court to decide for the parties based on the evidence put into an agreement without litigation. However, there are these certain few areas that agreements are disfavored or cannot be enforced as specific issues and the status quo are constantly changing and failure to be able to account for these would not be in the child’s best interest. Ultimately, however, with careful consideration of your legal needs—even where the parties cannot just agree—the law is still flexible with the right legal approach to meet the parents’ desire to settle and minimize litigation. Dixon & Moseley, P.C. attorneys handle custody and parenting time matters of all types throughout the State of Indiana. We hope this blog post provides some educational background on what you may not be able to directly agree to in custody cases, but how, through counsel, your legal needs and objectives may still be met to minimize conflict and litigation. This blog post is written by Dixon & Moseley, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.