Children’s Right To Be Supported

The right to be supported and to receive support belongs to the children, and the courts will protect that right even (or perhaps especially) against erosion by the parents.

Illinois public policy has recognized to blanket right of every child to the physical, mental, emotional, and monetary support of his or her parents. . . . The public has an interest in protecting children from becoming wards of the state. [Citations omitted.] In re Parentage of J.S., 193 Ill.App.3d 563, 550 N.E.2d 257, 258, 140 Ill.Dec. 621 (3d Dist. 1990).

Thus, although the law favors settlements in dissolution cases, in reviewing settlement agreements courts will pay particular attention – even to the extent of independent inquiries at prove-up – to ensure that child support is appropriately handled and set at a level consistent with the law. See also Department of Public Aid ex rel. Cox v. Miller, 146 Ill.2d 399, 586 N.E.2d 1251, 166 Ill.De. 922 (1992) (settlement agreement between mother and putative father of illegitimate child does not bar later action for support brought on behalf of child); In re Parentage of Mayberry, 222 Ill.App.3d 1008, 584 N.E.2d 533, 165 Ill.Dec. 354 (2d Dist. 1991) (vacating ruling that had upheld settlement agreement between mother and putative father of illegitimate child, noting that settlement agreement at issue, which provided for lump-sum payment to mother, did not adequately protect child’s best interests); In re Marriage of Florence, 260 Ill.App.3d 116, 632 N.E.2d 681, 198 Ill.Dec.351 (4th Dist. 1994).

Courts are equally reluctant to allow a custodial parent in a dissolution setting to waive child support, and they will not readily approve an agreement to do so without a sufficient evidentiary basis that such a waiver is in the child’s best interest. As a result of this protective stance, parents cannot simply trade the right to support away for other benefits for either the children or themselves.

In particular, the most frequently suggested exchange – support rights for visitation rights (e.g., either “If you wont’ insist on time with the children, I won’t seek support,” or “If you don’t insist on support, then I won’t ask for time with the children”) – will not be approved by the courts. The Illinois Supreme court has directly addressed the inappropriateness of this particular trade off in Blisset v. Blisset, 144 Ill.App.3d 1088, 495 N.E.2d 608, 99 Ill.Dec.161 (4th Dist. 1986), aff’d in part, rev’d in part on other grounds, 123 Ill.2d 161 Ill.2d 161 (1988). The Supreme Court held that an agreement waiving child support in return for a relinquishment of visitation rights is void, unenforceable, and against public policy. Similarly, in Miller v. Miller, 163 Ill.App.3d 602, 516 N.E.2d 837, 114 Ill.Dec. 682 (1st Dist. 1987), the parents had modified their original judgment to eliminate the father’s obligation to pay the son’s college expenses, the mother receiving certain funds instead at the time the modification was entered. When the child sued the father to enforce the father’s obligation to pay the son’s college expenses, the lower court ruled that the child lacked standing under the order, despite the fact that he had already incurred the expenses when he filed his petition. The appellate court, however, reversed and held that the child, as a direct third-party beneficiary to the parent’s original agreement. 516 N.E.2d at 844.

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