It is well established in Pennsylvania that it is against public policy to allow parents to bargain away child support for their children, but what about “taxing” themselves whenever they file a custody action? That is essentially the question raised in the Huss v. Weaver case before the Pennsylvania Superior Court.

The Superior Court ruled in favor of the enforceability of a $10,000.00 payment due to the mother each time the father filed a custody modification action. It is pointed out in an article written by Gina Passarella of the “The Legal Intelligencer” (registration required) that no appellate court had previously deemed a contract addressing custody and visitation to be unenforceable as against public policy. This case blurred the lines at the trial level, however, and while not a child support issue, the trial court nevertheless found that it was similarly against public policy as contracts limiting child support and an unenforceable element of the agreement.

Without knowing the provisions of the custody agreement, any number of explanations can be made for this type of seemingly restrictive aspect of the agreement. It is clearly designed to disincentivize the father from seeking modifications and “lock-in” the terms of the parties’ custody agreement against future efforts to modify, though the court could find no specific language in the agreement articulating that intent. Realistically, the amount is significant enough to discourage frivolous petitions to modify, but not a significant enough obstacle to father (an attorney) to seek modification in the event a modification was absolutely necessary.

The Superior Court could not find any justification to determine the provision to be so restrictive as to prevent the father from bringing an action in court. In fact, the agreement specifically states that the father was an attorney and capable of high level of income and that agreement included language specifically stating that both sides viewed the agreement as “fair, just and reasonable.”

As a consequence of the Superior Court’s overruling the trial court on the enforceability of the clause, they did not explore the merits of her second basis of appeal: that the father was estopped from contesting the enforceability of the agreement when he participated in the drafting and advised the mother that it was legal and enforceable. This would have been an interesting analysis for the court to make since it is a common occurrence for parties to reach agreements on custody without attorneys only to litigate the terms of those agreements months or years later.

This case continues Pennsylvania’s legal tradition of applying contract principles to family law agreements. Notwithstanding provisions that do, in fact, violate public policy, the court is going to give considerable deference to the wishes of the parties as they are articulated in their agreements. Here, the father negotiated and agreed to a clause which cost him $10,000.00 every time he filed a custody petition. Whether that has a chilling effect on his legal rights is a consideration for another time, but in this case, the court was not going to “fix” the agreement that the father co-authored with the mother.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989;, and on Twitter @AaronWeemsAtty.