I get calls almost every day where people want to terminate their parental rights. What these parents actually want to do is to stop paying child support for a child they do not see and do not care to see.
Often the other parent is more than happy to forfeit a few hundred dollars a month of child support in exchange for eliminating the possibility of the child never seeing the other parent ever again.
Exchanging Child Support For Parenting Time Is Not An Option In Illinois
Pursuant to the Supreme Court of Illinois, a child needs the financial support of both parents no matter what those parents have agreed upon.
“The modification of a child support obligation is a judicial function, administered exclusively by the court as a matter of discretion. The court is obligated in marital dissolution proceedings to protect the best interests of the children involved. Moreover, although property disposition agreements between spouses are binding upon the court, unless unconscionable, in marital dissolution proceedings, the court is not bound by agreements providing for the support, custody, and visitation of the children. Allowing former spouses to modify a court-ordered child support obligation by creating a new agreement between themselves without judicial approval would circumvent judicial protection of the children’s interests. Former spouses might agree to modify child support obligations, benefiting themselves while adversely affecting their children’s best interests. Parents may not bargain away their children’s interests. It is for this reason, then, that parents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children…
Further, we do not believe that forfeiting visitation rights and failing to anticipate unpaid support payments can constitute the detriment required to establish an equitable estoppel claim. To allow these reasons to suffice as a detriment, sufficient to establish estoppel, would allow Barbara and Allen, and others in similar circumstances, to look past the best interests of their children and, by their own agreement, frustrate the intent of child support and visitation orders. Such a result is untenable because it would circumvent and undermine a court’s role in the establishment and modification of a child support obligation. We have already held that such agreements are unenforceable. Moreover, as we noted earlier, parents may not bargain away their children’s interests; a mother’s violation of visitation terms does not excuse the father’s failure to comply with the alimony and child support terms.” Blisset v. Blisset, 526 NE 2d 125 – Ill: Supreme Court 1988 (citations omitted)
Every other agreement in an Illinois divorce court has to be stamped, filed and enforced by the judge. Child support modifications. Even if agreed, child support modifications must be petitioned and brought before a judge for approval.
“Allowing former spouses to modify a court-ordered child support obligation by creating a new agreement between themselves without judicial approval would circumvent judicial protection of the children’s interests. Former spouses might agree to modify child support obligations, benefitting themselves while adversely affecting their children’s best interests. Parents may not bargain away their children’s interests. Therefore, parents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children.” In re Marriage of Smith, 806 NE 2d 727 – Ill: Appellate Court, 2nd Dist. 2004
If the parents manage to “sneak” an exchange of parenting time for zero child support into an agreed court order, either party can be revoke that agreement at any time.
“Private agreements to modify child support without court approval are unenforceable.” In re Marriage of Watkins, 95 NE 3d 1184 – Ill: Appellate Court, 3rd Dist. 2017
Courts have to supervise child support. Otherwise, a child will be worse off for having completely lost a parent’s physical, emotional and financial support.
“It is the obligation of the court to protect the best interests of the children involved in determining child support obligations.” In re Marriage of Turk, 996 NE 2d 62 – Ill: Appellate Court, 1st Dist., 5th Div. 2013
Despite the oft-repeated rule that parents cannot give up visitation in exchange for eliminating child support…there are a few ways both child support and visitation can be eliminated in Illinois.
Getting The Court To Agree To An Elimination Of Child Support
A court can be reminded that child support awards are NOT mandatory. “[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a) (emphasis is mine)
But if a court believes child support is warranted (courts always do) then child support is determined by using a formula based on the parties’ incomes and parenting time.
Zero parenting time does not result in zero child support. Any parenting time less than 40% of the overnights with the child will result in the same amount of child support.
This standard child support amount is referred to as the “guidelines” amount of child support.
“The court may deviate from the child support guidelines if the application would be inequitable, unjust, or inappropriate.” 750 ILCS 5/505(a)(3.4)
It would be an amazing argument if a court believed that a parent not seeing a child was reason enough to have no financial obligation to that child.
Even if the court adopts that argument, the court has to explain in writing why they are deviating from guidelines child support.
“Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation.” 750 ILCS 5/505(a)(3.4)
If you pull this off, please contact me so I can hire you!
Equitable Estoppel As A Way To Eliminate Child Support
If you show a court that child support was reduced by agreement and you took affirmative steps because of that agreement, you can enforce the agreement via the theory of equitable estoppel.
“Equitable estoppel exists where a party, by his or her own statements or conduct, induces a second party to rely, to his or her detriment, on the statements or conduct of the first party. The party who asserts estoppel must have relied upon the other party’s acts or representations and not have any knowledge or convenient means of knowing the facts, and such reliance must have been reasonable.” In re Marriage of Hodges, 103 NE 3d 958 – Ill: Appellate Court, 5th Dist. 2018 (citations omitted)
After years of following the agreement to zero out child support, you can tell the court that this supposedly impermissible agreement is, in fact, enforceable because you have been following the agreement to your detriment.
“It is not practical to say that a person is not damaged when after relying on an agreement with his former spouse he uses money that would otherwise be applied to court-ordered support to pay for other obligations only to learn years later that his reliance on the agreement was misplaced.” In re Marriage of Hodges, 103 NE 3d 958 – Ill: Appellate Court, 5th Dist. 2018 (citations omitted)
Adoption Eliminates Child Support
If you cannot get a years-long agreement to eliminate child support in exchange for zero visitation, the only way to zero out child support is for someone else to adopt the child in place of the parent who does not want to pay child support.
“After an adoption judgment is entered, the biological parents of the child are relieved of all parental responsibilities for the child…adoption constitutes a complete and permanent severance of all legal and natural rights between such parents and children” In re MM, 619 NE 2d 702 – Ill: Supreme Court 1993
Spending time with a child is optional. Paying child support is not. To learn more about how child support really works (and doesn’t), contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
