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Couple Cannot 'Contract Away' Child Support Duty

By Mark Fass

A New York appellate court has refused to enforce a separation agreement that allowed a father to terminate child-support payments to his ex-wife if their teen-aged son “engag[ed] in full-time employment.” Enforcement of the agreement would run afoul of both precedent and pubic policy, the unanimous Appellate Division, First Department, panel concluded. Justice John W. Sweeny Jr. wrote for the unanimous panel in Thomas B. v. Lydia D., 09-06789:

[T]he parties cannot contract away the duty of child support. 'Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved the contract yields to the welfare of the children. The duty of a parent to support his or her child 'shall not be eliminated or diminished by the terms of a separation agreement,' nor can it be abrogated by contract.

Background

Petitioner Thomas B. initiated the present action for downward modification, pro se, against his former wife, Lydia D., in November 2006. Thomas B. sought, among other things, the termination of his child support obligations, on the grounds that the couple's son, Timothy, worked 35 hours per week at a record store. Per the terms of the couple's divorce agreement, which defined emancipation as, inter alia, “engaging in full-time employment,” Timothy was now emancipated, Thomas B. argued.

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