I have encountered this question, or variations of it, with some frequency over the years. My answer, while surprising to some, is always “no.” This is not to say that parties are barred from entering into settlement agreements concerning their children; on the contrary, New Jersey law strongly favors such settlements and will not interfere with them as a matter of course. There are exceptions to the general rule, however, especially in situations where the parties make an agreement which violates New Jersey public policy. Nowhere is this more obvious than in when children are involved.
This troublesome issue was recently addressed by the Appellate Division of the Superior Court in the case of E.C. v. C.W., decided on February 25, 2015. The facts, while somewhat convoluted, are that after many rounds of contentious proceedings involving custody of their young son, the parties entered into an agreement which was memorialized by a Consent Order signed by the trial judge stating that E.C. would get full custody of the child in consideration for C.W. never having to pay child support and forfeiting all future visitation. After further reflection, C.W. concluded that he had erred and filed an appeal seeking to set aside the agreement. The Appellate Division agreed.
The crux of the appellate court’s decision was that a trial court cannot, as a matter of law, uphold an agreement which violates New Jersey’s public policy on two fronts; first, the polestar legal issue of a child’s best interests and secondly, the legal doctrine that the right to child support belongs to the child, not to the parent. The appellate court emphasized that a parent’s right to visitation and the duty to support the child are not dependant and cannot be traded off.
The case is a good synopsis of New Jersey law on the subject of a court’s inherent authority to protect the best interest of a child. It is strongly recommended that a family law attorney be consulted before one enters into a settlement concerning his or her child(ren) in order to avoid later legal problems.
