Enforcing Contracts in Custody, Support

Father's Contract Fines Himself 10K to Modify Custody


Divorce, support and custody are all separate actions. Public policy does not allow parents to bargain away support payments and any contracts are scrutinized to ensure fairness and the best interests of the child. When parties are able to come to agreements outside of the court and without attorneys, the court relies on individuals' ability to enter contracts. Whether or not these contracts are enforceable are the concern. A recent case brought into question the enforceability of a rather unusual contract - the father created a contract that would essentially fine himself $10,000 for filing a petition to modify custody.

In Huss v. Weaver, the father created a contract with the mother with provisions that demanded he pay the mother the hefty amount if he ever filed a petition to modify custody; thus making the current custody arrangement virtually permanent. The terms state specifically that the amount is not unreasonable or impossible for him to pay, so he would not be limiting his own legal rights to modify custody. His salary, profession and earning capacity as an attorney supported the ability to pay the fee to the mother if he ever did truly want to modify. The trial court's ruling challenged the ability of the father to estop himself from exercising his own legal rights.

The trial court was also concerned with the possibility that the fine was encroaching on public policy that disallows parents from bargaining away support. The Superior Court reviewed this case under the principles of contract law, which are applicable in family law matters in Pennsylvania. When parties have created their own terms in a contract, the court holds this ability in high regard and does not necessarily intend to challenge the reasoning behind it. As long as it does not violate public policy and the parties involved have the mental capacity, PA courts value the ability of people to enter their own contracts freely. As such, the Superior Court ruled in favor of the enforceability of this contract.

So why did the father want to enforce a possible fine upon himself? The contract does not state why, only the terms of when and how. The couple entered the agreement in 2008, prior to having any children. They agreed that if they had a child together and split, that the mother would have primary custody and father would have visitation rights. The 10K was placed as a way for the mother to pay any legal fees if the father decided to challenge and modify custody. They had a child in 2010 and split in 2013, which brought the contract into question.

Ultimately, this protects their current custody agreement from any changes in the future. This case furthers the notion that individuals are able to create their own contracts but also reinforces why it is so important to have an attorney review a contract before signing. Because the courts apply contract law, parties must be fully aware of what they are signing. Challenging the enforceability of a contract can be costly and difficult work - it is best to have an experienced attorney verify whether or not the terms are in your best interests.