As soon as your child’s father realizes the connection between parenting time and child support – basically, the more time he takes, the less he’ll pay – he’ll probably start asking for more time, whether he actually wants more time or not.
So, the immediate, and natural, reaction most moms have is, “Well, what if I just remove child support from the equation entirely?”
What if I just don’t ask for any child support?
It’s a rational – though not entirely practical – solution to the problem of the connection between parenting time and child support, especially for a dad who has been mostly uninvolved and who you suspect doesn’t care about time with the kids as much as he cares about the bottom line.
I’m not saying that all dads are this way, but I am saying that this is an issue that has come up in my practice more than once in my nearly thirteen years in family law practice. It’s definitely worth considering.
Child support is a legal requirement – you can waive it or reserve it, but if you petition the court later, you would get child support awarded.
So, the thing about child support is that you – meaning, really, your child – are entitled to it by law. It’s quite literally the bare legal minimum your child’s father has to provide.
It’s not necessarily going to be as easy as just waiving or reserving child support for a future determination because child support, like anything else related to the kids, is modifiable based on a material change in circumstances. The risk for dad is that you get the parenting plan that you want and then go ahead and file for child support anyway.
Sure, he could counter-petition for a different parenting plan, but … at that point, the kids would have had more time in your care and it becomes harder (though not impossible – don’t rest on your laurels, moms) to attack the status quo, especially if they’re doing well with the arrangement.
If he talks to an attorney, the attorney will likely tell him that a waiver or reservation of child support won’t necessarily last forever. Especially if mom puts in the agreement that she wants a reservation of child support (more on this in a minute), she could turn around after the ink is dry on the agreement and file for child support in the juvenile court.
Dad could petition for a change in custody, but he can’t petition for a change unless and until there has been a material change in circumstances. If mom does this immediately, he won’t have a material change – so custody will stay the same and child support will be ordered.
An attorney would tell him this is likely mom’s plan – so he wouldn’t really have a reason to sign an agreement that is worded this way. It’s potentially too risky for him. So, unless he doesn’t talk to an attorney and is willing to just sign it on a hope and a prayer, you probably don’t have a great chance of being successful. But, hey, sometimes it’s worth a try, right?
The difference in a waiver versus a reservation of child support
A waiver of child support is just that – a waiver. It doesn’t mean forever, though, since the standard for anything related to custody, visitation, and child support is the “best interests of the child,” and the courts agree that receiving child support is in a child’s best interests.
If you waive it, you won’t be able to turn around and file a petition to modify immediately; you’ll need a material change in circumstances.
Similarly, if you put in that child support will be awarded at $0 or something similar, you will have to wait until there has been a material change in circumstances to petition for child support – but it would, of course, be ordered. (At that point, though, the door would also be open for dad to petition the court for more parenting time – so a little more risky.)
A reservation, on the other hand, leaves the door open for either parent to petition the court for child support – and, in this instance, a material change in circumstances is not required.
So, can I waive or reserve child support?
Yes – you can waive or reserve child support, but in order for an agreement to be valid, you’ll have to get him to agree.
If he talks to an attorney, the attorney is likely to give him similar advice to what I’ve given you. It’s kind of a risky little game.
You could also ask that the court not award child support, or simply file petitions for child custody and visitation (but not child support), but that’s a risky move strategically, too. If child support petitions aren’t pending before the court, the court likely won’t award it at all; then, if you go to court and lose (and don’t get the parenting plan you prefer), you can’t turn around and ask for child support at the end. We generally recommend that our clients file custody, visitation, and child support petitions together to make sure all potential issues can be heard, no matter what comes up.
And, once they’re filed, you’re probably unlikely to walk away without child support being awarded, because, like I said, it’s literally the bare legal minimum. But that’s the problem, right? Once child support is more or less a certainty, you’ll have a dad who is looking for more time. It’s a double edged sword.
I think you are probably more likely to get away with this in an agreement than in court, but it’s still a procedurally complicated issue. In almost every case, child support and the amount of parenting time each parent has are issues that go hand in hand.
For more information, to request a copy of our custody book for Virginia women, or to register to attend an upcoming custody seminar, give us a call at 757-425-5200 or visit our website at hoflaw.com.