In Georgia, the right to receive child support belongs to the child, not the custodial parent. What this means is that child support may not be waived by either parent via an agreement or via the conduct of either parent. See Sharpe v. Perkins, 284 Ga. App. 376(2007).
It has become more a more popular for couples considering marriage to enter premarital agreements in order to settle issues of property division or alimony in the event of divorce. Additionally,upon divorce some couples enter marital dissolution agreements in order to settle the issues concerning their divorce in lieu of taking their case to trial. Although these agreements may settle issues such as the amount of alimony, if any, as well as how the couple’s property, assets and debts will be divided upon divorce, these agreements cannot legally waive a child’s right to receive child support. See Department of Human Resources v. Brinson, 171 Ga.App. 905 (1984) and Collins v. Collins, 172 Ga. App. 748 (1984).
Not only is it impermissible for a parent to waive a child’s right to child support via a contract or written agreement, but in Georgia it is also impermissible for a child’s right to child support to be waived due to the conduct of either parent. For example, a child’s right to child support may not be waived due to his mother’s failure to answer a complaint for divorce filed by his father. Department of Human Resources v. Brinson, supra. Additionally, a parent’s obligation to pay child support is not waived or excused because the custodial parent refuses to allow visitation or parenting time, because in Georgia, one parent’s obligation is not excused by the obligatory failure of the other parent. See Ward v. Department of Human Resources, 241 Ga. App. 298 (1999).
By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC