A prior article discussed whether Georgia law allows parents to waive their statutory right to seek modification of prior child custody rulings. In this article, we address whether parents can waive their ability to seek modification of child support obligations. The short answer is, no.
A Georgia statute permits a court to modify a prior child support order upon the filing of a petition showing a substantial change in either parent’s income and financial status or the needs of the child.(1) Under well-established law, that statutory right to seek modification belongs to the child or children involved and may be exercised at the election of the parent having legal custody.(2) Since the right belongs to the child and not the parents, a parent cannot waive the right.(3) Particularly, a custodial parent cannot waive or bargain away a child’s right to seek increases in child support payments.(4)
The invalidity of parental waivers of the right to seek increased child support holds even where the original divorce decree did not obligate the noncustodial parent to pay any child support.(5) Notwithstanding the absence of an original award, the custodial parent may still file a petition seeking child support from the noncustodial parent on grounds of a change in either parent’s income and financial status or the needs of the child.(6)
Although a parent cannot waive a child’s right to seek increases in child support, the parent can validly waive the right to seek a downward modification of the obligation.(7) A parent can contract away the right to seek downward modification, as long as the agreement contains very clear waiver language which refers to the right of modification.(8) A parent can partially waive downward modification rights too. For instance, in one case, a father validly agreed to language in the divorce decree’s incorporated settlement agreement which waived his right to downward modification below a pre-determined floor amount of alimony in the form of child support.(9)
(1) O.C.G.A. § 19-6-15(k). (2) Livsey v. Livsey, 229 Ga. 368, 369, 191 S.E.2d 859 (1972). See also Worthington v. Worthington, 250 Ga. 730, 731, 301 S.E.2d 44 (1983); and Sharpe v. Perkins, 284 Ga.App. 376, 380(4), 644 S.E.2d 178 (2007). (3) Id. (4) Jones v. Jones, 632 S.E.2d 121, 123(1) (Ga., 2006). (5) Crosby v. Crosby, 249 Ga. 569, 570, 292 S.E.2d 814 (1982). (6) Id., at 569-570. (7) Jones, supra, 632 S.E.2d at 123(1); and Nelson v. Mixon, 265 Ga. 441, 441-442(1), 457 S.E.2d 669 (1995). (8) Jones, supra, 632 S.E.2d at 124(1). (9) Id.