Every divorce is different, and as such, it might make sense for you to want to waive your claim to child support. In certain cases, you might want to waive child support in exchange for the other parent waiving visitation rights or making another type of concession.
However, under California law, neither parent can legally waive his or her responsibility to pay child support. California Family Code Section 4001 states, “In any proceeding where there is at issue the support of a minor child…the court may order either or both parents to pay an amount necessary for the support of the child.”
A child’s right to receive parental support is inherent and cannot be waived by either party. Regardless of the parents’ relationship with one another (whether married, divorced, separated, or never married), as long as paternity has been established, both parents are on the hook for child support. Regardless of any arrangement—such as “trading” spousal support for child support—both parents still have a legal obligation to support the child.
The issue of waiving child support payments came up in Marriage of Ayo (1987), which further established the parents’ obligation to pay child support. In this case, the court established that the legal obligation to pay child support is much more than a normal debt; it goes beyond a simple “good-faith” obligation to pay and therefore cannot be overruled by the individual parties. (If they could be overruled, that would mean that California law and the ruling of the courts could be thwarted by a simple provision in a contract, i.e. parenting plan.)
An agreement to waive child support cannot be legally binding, and in fact, it could have a negative effect on your family law case. For example, say John and Denise are getting a divorce and have a 5-year-old son together. Denise says she will waive her right to child support if John does not seek custody of their son. John agrees, but the judge finds out about the arrangement and takes it as evidence that John is trying to get out of his legal obligations as a father. Now John’s agreement with Denise—which would not have held up in court anyway—is useless and has become a liability in his divorce arguments.
However, while neither parent can waive their obligation to child support, it is important to remember that parents have a great deal of flexibility when it comes to creating a parenting plan. Parents are encouraged to come up with their own solutions, as these tend to be more amicable and appealing to both parties, before bringing their case to a judge.