Child Custody, Visitation & Relocation

Agreement Between Parents to Pay $10,000 Liquidated Damages Should Either Parent Legally Challenge Child Custody

In the family law, child custody appellate case of Huss v. Weaver, PICS Case No. 14-1705, (Pa. Super. Oct. 21, 2014)  the Honorable Christine L. Donohue, writing on behalf of the Pennsylvania Superior Court ruled that the contractual agreement bargaining away child custody or visitation rights and imposing a fee to legally challenge such agreements were not void as against public policy. The order of the trial court was reversed.

Appellant Amy Huss appealed from the trial court’s granting of the preliminary objections of appellee, James Weaver. The parties, who had been romantically involved, entered into an agreement that provided that if their relationship resulted in the birth of a child and their relationship subsequently terminated, the parties would have shared legal custody and Huss would have primary physical custody, subject to specific visitation rights held by Weaver. The agreement further provided that if Weaver filed a complaint seeking modification of the custody arrangement, he would pay Huss a $10,000 fee each time he filed such a complaint.

The parties had one child and subsequently separated. Weaver then filed a complaint for custody; Huss then filed a complaint for breach of contract due to Weaver’s failure to make the required $10,000 payment. Weaver filed preliminary objections, arguing that the fee provision violated public policy. The trial court granted the preliminary objections and dismissed Huss’ complaint, noting that parents could not bargain away their children’s right to receive child support along with the axiomatic proposition that custody arrangements are to be made in the court’s discretion in the best interests of the child.

Huss alleged that the parties had been engaged in protracted litigation, with Weaver filing numerous complaints and petitions, failing to pay Huss the required $10,000 for each such filing. Huss also contended that Weaver negligently or intentionally induced her into entering into the parties’ agreement, which she contended was drafted by Weaver and/or a member of Weaver’s law firm, and that Weaver never indicated that he believed the agreement to be against public policy.

The court held that the parties’ agreement was valid and enforceable. The court distinguished between child support, which was a right of the child and could not be bargained away by parents, and custody and visitation rights, which belonged to the parents. Although the court noted that it was not bound to any custody agreement in deciding any custody arrangement in the best interest of the child, it found that the parties’ agreement had no effect on the court’s ability to modify custody arrangements. The court held that the fee provision did not act as a discouragement on Weaver’s ability to seek court modification of custody, and credited Huss’ contention that the fee was intended to serve as a “defense fund” in recognition of Weaver’s superior earning ability.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 37PLW1032 (November 4, 2014)

Filed Under:  Child Custody, Family Law; Liquidated Damages

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