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Agreement for $10,000 Payment Regarding Custody Modification Valid

The parties entered an agreement that required one party to pay $10,000 if the other party sought a custody modification- it was valid.


Two unmarried parties entered into an agreement, whereby if they ever separated and they had children, the woman would have primary physical custody. The man would have partial physical custody. If the man ever sought to modify the provisions of the agreement, he would have to pay her $10,000.

The specific provision set forth as follows:

In the event that [man] files a complaint, motion, or petition or similar pleading seeking modification of amendment of the child custody and/or visitation provisions set forth herein, [man] agrees to pay [woman] $10,000 for each modification or amendment sought.

The guy was a lawyer and the female was a real estate agent. The man drafted the agreement. The trial court ruled that the enforcement of such a provision violated public policy as parents cannot bargain away such rights. The Superior Court, however, determined that custodial rights belong to the parents, unlike a child's right to support. Therefore, they can be bargained away and such a provision is enforceable.

This decision may have had a different result if there had been a determination that the $10,000 payment was not fair, just, and reasonable based upon the parties' own words. Further, that the man had a considerable salary and it was not an impediment to him filing a custody suit. The specific language of the contract stated "he was an attorney capable of earning a large salary." Therefore, the provision was not void as it was not against public policy.