This case involves an agreement to forgive child support which was never approved by a court and therefore was not enforced. As the Waco Court of Appeals observed, “though the equities appear to weight in favor of [the father], we cannot conclude that the parties’ purported agreement eliminated [the father’s] child-support obligation.” In re R.K.S., No 10-11-004-3-CV (Tex. App. – Waco Apr. 24, 2014) (mem. op.).
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The Child Support Agreement
In 1995, a court ordered the father to pay the mother $493.74 per month in child support for two children. By 2000, the father was about $37,500 in arrears on his child support. The mother agreed to reduce the child support to $10,000 in exchange for the father voluntarily relinquishing his parental rights so that the mother’s husband could adopt the children.
The Child Support Agreement Unravels
The father’s father paid the mother the $10,000. The father signed an Affidavit of Relinquishment. The mother’s attorney filed a petition to terminate the father’s parental rights and a petition for the mother’s husband to adopt the children. But at some point in time, the mother and her husband decided not to proceed with the termination and adoption. The father did not know that the mother and her husband had abandoned their plans. He made no further attempt to pay child support.
More Child Support
In 2010, the mother again sued the father for back child support, this time claiming that he owed $114,747.82. The father’s defense was that the mother had received the $10,000 lump-sum payment so that the $37,500 in arrears had been paid or forgiven. Further, the father said he had no duty to support the children after the agreement.
Court Order Necessary
Relying on Attorney General v. Scholer, 403 S.W.3d 859 (Tex. 2013), the court of appeals wrote that child support is not a debt – which could be the subject of an agreement to forgive – but is a duty. Only a court may relieve a person of his duty to pay child support. Because the father never obtained a court order approving the parties’ agreement, and the mother never had the father’s parental rights terminated, the father’s duty to support his children never ended.