CAN MY EX AND I CREATE OUR OWN CHILD CUSTODY AND CHILD SUPPORT AGREEMENT?
It is a common set of questions: can parents create their own agreements outside of court regarding child support and visitation; and can these agreements be made enforceable? As is often the case when addressing family law related questions, the answer depends on the circumstances. We will address this question in the context of both visitation, and support, here.
Child Custody/Visitation Agreement
In Kansas, when a child is born out of wedlock, or parents of a minor child are separating or filing for divorce, Courts highly encourage parents in these situations to sit down and discuss between themselves what visitation and parenting time with their minor child (or children) may look like.
Indeed, Courts encourage this practice so much that in Kansas a legal presumption is created any time parents reach an agreement related to visitation or parenting time for their child. Specifically K.S.A 23-3202 states that, “If the [parents of a child] have entered into a parenting plan, it shall be presumed that the agreement is in the best interests of the child.”
As noted above, whether or not these agreements reached between parents are enforceable inside, or outside of Court, will depend and vary on the circumstances.
Whether a child is born out of wedlock, or parents of a minor child are separating or filing for divorce, to make an agreement on visitation or parenting time formally and legally enforceable the agreement must carry with it an official court order where a local District Court Judge has approved the agreement and found it in the child’s best interest. Without a court order adopting the agreement reached by the parents as such, the agreement is not per se enforceable. This means either parent could elect, at their own discretion, to stop abiding by the agreement at anytime, leaving the other parent without any immediate recourse.
This is not to say, however, that if parents of a child have been following a routine schedule consistently for some time without a Court order, that one of the parents in that situation could not subsequently file for a Court order to enforce that agreement and schedule should the other parent decide to stop abiding by it at some point. Indeed, it is not uncommon for parents of a child born out of wedlock to often reach informal agreements outside of court regarding their child. At times, parents may also follow those agreements for many, many years. However, just as it is not uncommon for parents of a child born outside of wedlock to reach informal agreements outside of court regarding their child, it is also not uncommon for one of the parents in these types of situations to at some point in time stop abiding by a previously agreed upon schedule. These types of events will often occur around one or both of the parents engaging in some form of event or major life change, such as entering into a relationship with another individual, getting married, moving or relocating geographically, changing a job or employment, or having additional children.
When these types of situations occur, you will need to get to Court as timely as possible to secure a formal Court order to make a schedule enforceable.
Child Support Agreement
Unlike issues relating to visitation and parenting time, courts in Kansas generally have a different opinion as it relates to child support and parents attempting to reach agreements relating to support outside of court. That is, courts in Kansas generally dissuade parents from trying to come up with agreements relating to child support outside of court, and rather encourage parents to secure formal court orders on support as timely as possible whether it be a situation where a child is born outside of wedlock, or parents of a child are separating or filing for divorce.
This is because in order for a child support arrangement to be valid in Kansas, it has to be in compliance with the Kansas Child Support Guidelines, and approved by a District Court Judge. And in order to acquire a support order that is in compliance with the Kansas Child Support Guidelines, and approved by a District Court Judge, you will need to go to Court.
While courts encourage parents to secure formal court orders on support, and indeed require parents to secure a Court order to be formally in compliance with the Kansas Child Support Guidelines, it is not uncommon for parties to attempt to deal with such matters on their own. In such situations, a common question is: if I make support related payments directly to another parent outside of court by informal agreement, can I subsequently receive credit for any such payments should the other parent take them to court later on? Once again, the answer depends on the circumstances.
Technically, a Court in this type of situation is not per se required to give one or either of the parents credit for direct support payments. That said, if a parent has detailed documentation that would verify child support payments have been being made informally prior to any formal Court action occurring, once such an action is filed, a Court can consider such evidence when determining whether any orders for back child support are warranted, and if so, what such an order would be. Phrased differently, if a parent were to make direct child support payments to another parent informally, and then that parent were to subsequently institute a paternity proceeding and as part of the proceeding request back child support, a Court would typically at least consider any evidence of back child support presented. It will however remain up to the Judge’s discretion as to determine whether adequate proof of prior payments has been submitted, and exactly how much money to give credit for.
Should you have other questions relating to paternity proceedings in general, or wish to speak with an attorney regarding any family law related matter, please feel free to contact our firm for a free initial consultation.