Can A Separation Agreement Terminate Parental Rights In Virginia?

Posted on October 7th, 2013, by James Livesay in Family Law. Comments Off on Can A Separation Agreement Terminate Parental Rights In Virginia?

Separation AgreementA frequently asked question in Virginia divorce cases is whether one party may relinquish his or her parental rights in exchange for a termination of that party’s child support obligation. Can the parties include such a provision in a separation agreement?

This question was recently answered, quite definitively, in Layne v. Layne, 61 Va. App. 32, 733 SE2d 139 (10/23/2012).

Layne v. Layne involved a married couple with one child. The parties separated and later reached a separation agreement, which included the following provisions:

Child Custody and Visitation: Mother agrees that she has and does hereby relinquishes [sic] her parental rights and any and all claims of parenthood to the child.

Child Support: Father hereby waives the right to any claim of child support.

The separation agreement was approved and incorporated into a Final Decree of Divorce of the parties. Then, over five years later, the mother moved the trial court which had entered the divorce decree to reinstate the case and establish a visitation schedule for the mother with the child. The trial court denied the mother’s motion on the ground that her parental rights had been terminated by the divorce decree, and so she was not entitled to seek visitation with the child. The matter was appealed to the Virginia Court of Appeals.

The Court of Appeals essentially found the agreement of the parties to have been an unenforceable attempt to circumvent the requirements of Virginia Code Section 16.1-283. That Code Section lays out the constitutionally valid mechanism for termination of parental rights in Virginia. Quoting from previous case law, the Court in Layne v. Layne held that “[t]he obligation to comply with the statutory scheme that has been designed by the legislature to protect parents and children cannot be abandoned by a judge under the guise of seeking to ‘promote the best interests of the child.'”

The Court of Appeals found that the parental rights of the mother in Layne v. Layne had not been terminated through the specific requirements of Virginia Code Section 16.1-283 or any other code section. The Court held that the agreement between the parties to terminate the mother’s parental rights was “void as against public policy and unenforceable as a matter of law,” and thus that the divorce decree “based on such an agreement must likewise be deemed void.”

The Court of Appeals reversed the judgment of the trial court and remanded the case for further proceedings.

Why Was The Separation Agreement In Layne v. Layne Unenforceable?

The divorcing couple in Layne v. Layne made two mistakes, which rendered their separation agreement (or at least the provisions relating to parental rights and child support) unenforceable.

First, as explained previously on this Blog, the parental rights of a mother or father in Virginia can be terminated only if there is a third party willing to step into that parent’s role. This is typically accomplished through a stepparent adoption, whereby the custodial parent’s new spouse “steps into the shoes” (legally speaking) of the parent whose rights are terminated. Virginia’s public policy dictates that the custodial parent should have another parent (biological or adoptive) from which to seek financial support if needed. Basically, the state doesn’t want to run the risk of having to financially support a child if something happens to the custodial parent.

Second, a parent in Virginia cannot contractually waive his or her right to seek future child support. Parties can agree that based on their present financial circumstances no child support will be paid to the custodial parent. However, such an agreement is not permanently binding. Such an arrangement is always modifiable in the future, based on any material change of the parties’ financial circumstances.

The only way for one party to permanently be relieved of his or her child support obligation, is for that party’s parental rights to be terminated. Again, in Virginia that can only be done where a third party assumes both the rights and responsibilities of the parent whose rights are terminated.

The family law attorneys at Livesay & Myers, P.C. have years of experience with stepparent adoptions and others cases involving termination of parental rights. From our five convenient office locations, we represent clients across Northern Virginia. If you have a question regarding termination of parental rights or stepparent adoption, contact us to schedule a consultation today.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s five offices.

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