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Laura W. Morgan
Family Law Consulting

It is black letter law that parents cannot modify custody or child support by a private agreement. In order for any modification to be binding and effective, such modification must be entered as an order of the court. “[A] judgment of divorce providing for support payments in the future is a final judgment. This rule is subject to the right of a party to seek modification of the decree, but until such modification has been ordered, the decree is entitled to enforcement as originally entered.” Dent v. Casaga, 296 Minn. 292, 296, 208 N.W.2d 734, 737 (1973) (emphasis supplied). See, e.g., In re Marriage of Smiley, 518 N.W.2d 376 (Iowa 1994) (appropriate date for change in parents’ child support obligations was after award was entered transferring physical care of some children from mother to father, rather than earlier date that those children began to live with father); Price v. Price, 912 S.W.2d 44 (Ky. 1995) (father’s agreement to take child into his home did not extinguish his duty to pay support to custodial mother until legal custody was changed); Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 586 A.2d 839 (App. Div. 1991) (child support obligation is not automatically abrogated, and support may not be unilaterally withheld without court authorization, if child moves from home of parent to whom support is owed into home of supporting parent).

The situation often arises, however, where the parties informally change custody of a child, without any court order. Theoretically, the new custodial parent still owes child support payments to the new noncustodial parent until there is an order of the court modifying custody and support.

The courts seek to avoid the obviously inequitable situation where a noncustodial parent could collect child support for substantial periods of time during which that parent simply did not have custody. The inequity of the circumstance was stated thus:

[When] custody is changed from one parent to the other parent, no valid justification remains for requiring the new custodial parent to continue payments that are intended to be purely for the support, benefit, and best interest of the child. The child’s best interests cannot be served by continuing the prior support arrangement, as the child is not benefitted by the new custodial parent continuing to provide support to the non-custodial parent. Consequently, such a support agreement serves no purpose for the child after custody changes, and would only confer a personal benefit upon the non-custodial parent if the payments were allowed to continue.

In Interest of Doe, 917 S.W.2d 139, 142 (Tex. App.-Amarillo 1996).

The situation is further complicated by the Bradley Amendment, 42 U.S.C. § 666(a)(9)(C); 45 C.F.R. § 303.106, which states as a requirement for a state’s receipt of federal funds that the state must not allow retroactive modification of a child support order once the order is due and owing.

To escape the strictures of non-retroactive modification, the courts have come up with a number of different theories under which a parent is not liable for child support during the time he/she takes custody of the child under an express agreement between both parents that custody changes.

A. Credit for Non-Conforming Payment

Under this theory, the new custodial parent is held to his/her child support obligation until such time as the obligation is prospectively modified, but the parent is given a credit for the direct support the parent pays on behalf of the child in his/her custody. This effectively wipes out the arrears, and then a new order is set. Holmes v. Glass, 634 So. 2d 556 (Ala. App. 1994); Sterrett v. Hartzell, 640 N.E.2d 74 (Ind. App. 1994); White v. White, 34 Md. App. 365, 368 A.2d 1061 ( ); State ex rel. Division of Family Services v. Isadore, 893 S.W.2d 872 (Mo. Ct. App. 1995); Redfield v. Redfield, 6 Neb. App. 274, 572 N.W.2d 422 (1977); Souran v. Souran, 80 Misc. 2d 476, 363 N.Y.S.2d 511 (Dist. Ct. Suffolk County, 1975); Beverly v. Beverly, 43 N.C. App. 60, 257 S.E.2d 682 (1979); McNeal v. Robinson, 628 P.2d 358 (Okla. 1981); Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68 (1986); Schafer v. Schafer, 95 Wash.2d 78, 621 P.2d 721 (1980). See generally Robert A. Brazener, Annotation, Right to Credit on Accrued Support Payments for Time Child is in Father’s Custody or for Other Voluntary Expenditures, 47 A.L.R.3d 1031 (1973 & Supp. 2003).

B. Automatic Termination of Obligation by Operation of Law

Under this theory, the new custodial parent’s obligation is terminated by operation of law upon a permanent change of residence by the child, even if that permanent change is not under a court order. Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979).

C. Child Support Obligation Suspended by Recognition of Agreement

Louisiana courts have held that child support can be suspended by implied agreement, even when the custodial parent does not specifically agree to the suspension of payments, where the custodial parent delivers physical custody of the child or children to the noncustodial parent who then provides directly for their support. In such cases an implied agreement has been found due to the mutual understanding between the parents that the father would assume sole responsibility for feeding, clothing and sheltering the child or children in his care. Chamblee v. Harvey, 787 So.2d 610 (La. Ct. App. 2001).

D. Modification Nunc Pro Tunc to the Time of Change of Custody

Under this theory, the court is modifying the child support order back to the time of the change in custody. Floyd v. Abercrombie, 816 So.2d 1051 (Ala. Civ. App. 2001).

E. Child Support Obligation Abates Pursuant The Guidelines

Missouri’s child support guidelines specifically provide that if a custodial parent relinquishes control of a child to a noncustodial parent for more than 30 days, the noncustodial parent’s obligation is abated for the period of custody. V.A.M.S. § 452.340, subd. 2; Gordon v. Gordon, 924 S.W.2d 529 (Mo. Ct. App. W.D. 1996).

Alaska’s guidelines authorize a court to find that an obligee parent is precluded from collecting arrearages that accumulate for a period of nine months or more while the obligor parent is exercising de facto primary custody of the children. Alaska Rules Civ. Proc., Rule 90.3(h)(3); Murphy v. Newlynn, 34 P.3d 331 (Alaska 2001). See also Supcoe v. Shearer, 204 W. Va. 326, 512 S.E.2d 583 (1998) (father’s obligation to support his child arose on date of post-divorce de facto change of custody to mother, rather than when mother thereafter requested court-ordered child support, and thus, order requiring father to pay child support retroactive to date of change of custody was proper).

F. Rule 60(b) Relief From Judgment

If the change in custody comes within the time limits of Rule 60, then relief from judgment might be appropriate. Brakke v. Brakke, 525 N.W.2d 687 (N.D. 1994) (when both parents agree to actual change in custody for an extended period of time, rule governing relief from judgment for any other reason justifying relief can be used to provide relief from unjust enforcement of de facto custodial parent’s support obligation).

G. Equitable Estoppel

Finally, remedies such as equitable estoppel should be considered. Strum v. Strum, 22 Ill. App. 3d 147, 317 N.E.2d 59 (1979).


The failure to affect a formal change in child support upon an informal change of custody doesn’t necessarily mean the continued accumulation of arrears. Each of these theories should be considered.

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