Forbidden Provisions in Child Custody & Child Support Orders: Legal and Practical Considerations for the California Family Law Lawyers
Professionals often feel pressured to please their clients — and sometimes that means agreeing to provisions that look harmless but cause enormous damage later. In California family law, this sometimes appears in the form of custody or child support clauses that are void as a matter of public policy. When these unenforceable provisions surface later in a case, they almost always create more work, more conflict, and more stress for families.
These issues aren’t theoretical. A few years ago, I worked on a paternity matter where the parents had signed a stipulation providing that Mother’s child support could not be modified downward unless Father secured employment earning at least $100,000 per year. Mother — then represented by different counsel — accepted the restriction because she did not want to disclose her financial information. What seemed like a convenient shortcut at the time later became a serious problem.
When Mother changed jobs, she was no longer allowed to continue her outside consulting work, resulting in a significant drop in income. She sought a downward modification of support, but instead of a straightforward hearing, she ran into an unexpected obstacle: the newly appointed family law commissioner, who (like many judicial officers assigned to family law) lacked a family law background, attempted to interpret the stipulation through contract principles rather than under the statutory framework governing support.
Because the stipulation was drafted in a way that invited this confusion, the commissioner struggled to apply the correct legal standard. What should have been a simple modification hearing turned into additional appearances, briefing, and months of delay. By the time Mother retained the firm where I was practicing, she had already spent significant and unnecessary attorney’s fees trying to unwind the damage.
We were ultimately able to secure a downward modification once we clarified that the restriction on modification was void as a matter of public policy. But the lesson was clear: a single defective provision forced a parent into avoidable litigation, multiple hearings, and thousands of dollars in fees — all because the original agreement attempted to contract around the court’s continuing jurisdiction.
Child Custody and Support Provisions that California Courts will Not Enforce
California law places limits on what parents may agree to in child custody and support matters. Even when both parties agree to a term — and even when the court signs the order — any provision that conflicts with public policy is unenforceable. The cases below illustrate the types of terms that courts consistently strike down on public policy grounds.
1. Provisions that divest the court of child custody jurisdiction.
Examples include:
A provision stating that a parent waived all their child custody and visitation rights as to a child. (In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020, 1026-1027.)
A parent stipulating by hearing to the termination of her parental rights. (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 990-994.)
Parents stipulating that California had UCCJEA jurisdiction to modify a North Carolina child custody order without the Court first determining that it had modification jurisdiction. (In re Marriage of Kent (2019) 35 Cal.App.5th 487, 495-496.)
2. Provisions that divest the court of child support jurisdiction.
Examples include:
A parent stipulating that child support would be “absolutely non-modifiable downward" throughout the term that child support shall remain in effect. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 729-730.)
A provision submitting future child support issues to binding arbitration to the extent it purported to deprive family court of jurisdiction to modify child support. (In re Marriage of Bereznak (2003) 110 Cal.App.4th 1062, 1068-1070.)
Provisions whereby one party agrees to "hold the other party harmless" from any claims of any kind regarding their minor child's support is void against public policy. (In re Marriage of Ayo (1987) 190 Cal.App.3d 442, 446-453.)
A provision authorizing de novo review of child support modification request without proof of changed circumstances deemed unenforceable. (In re Marriage of Cohen (2016) 3 Cal.App.5th 1014, 1016-1017.)
A provision in a dissolution judgment limiting to two years Husband's obligation to pay child support add-ons void. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1340-1341.)
3. Provisions waiving the right to an attorney fee award in child support or child custody proceedings.
(Krog v. Krog (1948) 32 Cal.2d 812, 817 & In re Marriage of Joseph (1990) 217 Cal.App.3d 1277, 1284-1285.)
4. Provisions giving the court continuing subject matter jurisdiction to adjudicate custody/visitation as necessary even after a child attains 18.
(In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 592.)
5. Provisions purporting to control the religious upbringing of minor children.
Unenforceable on First Amendment public policy grounds and because such agreements are: (i) too vague to demonstrate a meeting of the minds or to provide an adequate basis for enforcement and (ii) likely to excessively entangle the court in religious matters. (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 114-115.)
6. Provisions giving counsel a “charging lien” to secure attorney fee liability is unenforceable against child support payments or arrears.
"Because a contract between parents diminishing court-ordered child support is not binding on the child or the court …, we conclude a parent's contract with an attorney should likewise be disregarded to the extent it would diminish the funds the court has deemed necessary for the child's welfare." (Hoover-Reynolds v. Superior Court (1996) 50 Cal.App.4th 1273, 1279-1280.)
Practical Drafting Guidelines to Avoid Invalid Provisions
1. Include a severability provision in your agreement.
Every agreement between parents should include a severability clause because it protects the enforceability of the agreement. If a provision is found to violate public policy and is inseverably linked to other valid provisions, the entire agreement may be void. But if the problematic provision is distinct and severable, the remaining valid provisions will be enforced. (Marriage of Melissa (2012) 212 Cal.App.4th 598, 603.)
The severability clause should provide that the invalidity or “voidability” of any one or more provisions of the agreement shall not invalidate the remaining provisions, and that the remaining provisions may be severed and enforced according to their terms.
2. Consider whether a proposed provision's practical effect is the court abdicating its responsibility to determine matters affecting the child’s welfare.
This framework is helpful because it reminds you of one of the guiding principles underlying these cases: courts have continuing jurisdiction to act in the child's welfare. It is the child’s right to have the court hear and determine all matters concerning their welfare, and parents cannot contract around that right.
For example, in Jackson, the court stressed that the error was not that the trial court had terminated parental rights by stipulation, but that the judge had completely abdicated his responsibilities by failing to follow procedures mandated in the Family Code — such as ordering an independent investigation and then basing findings of best interest and the order of termination on the investigator’s report and other evidence. (In re Marriage of Jackson, supra, 136 Cal.App.4th at 994.)
3. Educate your clients so that they can make an informed decision.
Many of these cases — including the example from my own practice — arise when attorneys attempt to meet a client’s short-term goals without considering the long-term consequences.
Jackson is again illustrative. The issue was not Michael Jackson’s desired outcome, but the failure to follow the statutory procedures required before terminating Deborah Rowe’s parental rights. Had his attorneys advised him to follow those procedures, it might have cost more and the outcome might not have been guaranteed — but the resulting judgment would likely have been protected from collateral attack.
Conclusion
Family law works best when our agreements stay within the boundaries set by statute and public policy. Thoughtful drafting protects not only our clients but the enforceability of their agreements years later.
I hope these examples help fellow practitioners draft with greater confidence and avoid common pitfalls. I’d welcome hearing others’ experiences or perspectives.