Can I waive my rights to my child and prepay child support upfront?

Posted by Martin E. FriedlanderMar 21, 20160 Comments

A recent decision from New York County Family Court denied parties the ability to agree to the prepayment of child support as an upfront lump sum. Clients often ask me if it would be legally effective to prepay their obligation for child support. According to Judge Goldstein's opinion In re Matter of Hope B. v. Avery G., in which a recent college graduate and his former girlfriend submitted an agreement whereby the father would surrender his parental rights and prepay a presumed 18 years-worth of child support to the mother upfront, this is not a viable option for payment of child support. In that case, the father was a resident of Texas, where waiver of parental responsibility is permitted, but the parties acknowledged that New York had jurisdiction over the issue. The parties also asserted in their papers that such a surrender and prepayment plan was in the child's best interests.

Despite the fact that the arrangement was agreed upon by both parties, Judge Goldstein would not allow this surrender and prepayment to take place. The court set forth extensive reasoning for this decision. First, the court emphasized that the family is without the authority to approve such a surrender when no authorized agency is involved. In fact, the court found that all relevant New York statutory and case law directs the family court to deny the parties' application for surrender of parental rights since the law in New York is quite limited with regard to when a surrender of that nature may be appropriately executed, which would generally be in the context of adoption.

Although the court stressed that a best interest analysis was irrelevant in this case, given that legal precedent alone was sufficient for denial, and the limited-jurisdiction family court had no authority to permit a surrender, the court engaged in an interesting quasi-best interests analysis.

In that analysis, the court pointed to three specific factors that exemplified the policy behind such a decision. First, the father had asserted that he was satisfying his future child support obligations with his upfront payment, as, according to his calculations, it was equal to the amount of his current support requirement, multiplied by 18 years. Even setting aside the fact that New York generally requires 21 years of support and other miscalculations made by the father, the court advised that since the father was an Ivy-league graduate fresh out of college, his present salary of $57,000 was bound to increase over a period of years, which would thereby increase the amount of support to which his child would be entitled.  Secondly, the court asserted that, despite his initial reaction to the unplanned pregnancy of the child, and the emotional distress he described as a result of the shock, the father might, given time, want to have a relationship with his child. Thirdly, with regard to the father's wish to surrender his parental rights, the court found that this was not appropriate in a situation where surrender of one parent's parental rights would leave the child with only one parent, since the mother did not have a partner interested in adopting the child at that time. A favorable ruling on the surrender, the court pointed out, would unnecessarily render the child an orphan in the event of the mother's death.