PA Supreme Court Upholds $10,000 Defense Fund in Custody Agreement

PA Supreme Court Upholds $10,000 Defense Fund in Custody Agreement

In a recently reported case, Pennsylvania Superior Court upheld the provision of an agreement whereby a Father agreed to pay to Mother $10,000 every time he filed to contest the parties’ custody agreement. Huss v. Weaver, — A.3d — (2014), 2014 Pa. Super 238.

The parties entered into a contract in 2008 and agreed that if a they ever had a child together, Mother would have primary physical custody and Father would have partial custody. The agreement stated that if Father filed to modify this agreement with a court, then he would pay $10,000 to Mother for each such attempt.

The parties had a child in 2010 and Father sought to modify the custody agreement. Father did not make any of the required $10,000 payments to Mother for each request for court intervention. Mother brought the instant action. The trial court dismissed Mother’s complaint, holding that the provision for the $10,000 payments was void as against public policy. An appeal followed.

In its opinion, the trial court stated that the “$10,000 clause” was against public policy of “assuring continuing contact between child and parent. It substantially impairs the Court’s power and the Commonwealth’s duty to determine what is in the child’s best interest.” Id.

On appeal, the Pennsylvania Superior Court overturned the trial court’s ruling and held that the $10,000 clause was valid and not against public policy. The Superior Court found that “we have not identified any ‘dominant public policy’ grounds in governmental practice, statutory enactments, or violations of obvious ethical or moral standards, that provides a basis for declaring the ‘$10,000 clause’ in the Agreement to be unenforceable as against public policy.” Id.

The trial court further feared that the required payment by Father would be a fee, impediment or cause a chilling effect on his ability to exercise his custody rights. The Superior Court disagreed. While acknowledging that custody is always modifiable, the Superior Court stated that the 10,000 clause in this case is not intended to prevent Father from seeing his child. To determine whether such a clause “would act as an impediment would depend, first and foremost, upon [Father’s] financial ability to pay it.” The agreement in this case specifically stated that Father “is an attorney capable of earning a large salary.” Moreover, the agreement states that its terms are “fair, just and reasonable.” Finally, Father “agreed that he fully understood each of the Agreement’s provisions and executed it ‘freely, voluntarily, without coercion or other compulsion.”

It will be interesting to see if this type of a clause becomes more prevalent in custody agreements in the future, or if it will be specific to these narrow circumstances. The court reiterated that the clause at issue was enforceable because “it did not limit [Father’s] ability to see court intervention to modify the custody and/or visitation provisions in the Agreement between these parties in the best interests of the child.”


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About the author

About Melissa Towsey

Melissa graduated from the University of Virginia in 2002 with a double major in Sociology and Foreign Affairs. After working for several years as a paralegal in Washington, D.C., she attended The University of Villanova School of Law and graduated in 2010. During law school, Melissa was involved in several public interest organizations and published an article in Villanova’s Environmental Law Journal, “Something Stinks: The Need for Environmental Regulation of Puppy Mills” 21 Vill. Envtl. L.J. 159 (2010) After law school, Melissa clerked for the Honorable Thomas G. Parisi, Administrative Judge of the Criminal Division in the Court of Common Pleas, Berks County. Melissa is the supervising attorney of the firm’s Appellate Unit. The Appellate Unit handles all aspects of the appellate process for family law cases as well as advanced research within the firm. Melissa and her husband, Paul, reside in Montgomery County with their two cats Wembley and Gobo. In her spare time, she enjoys audiobooks, barbeques, and watching action movies.