Custody and child support terms in a Georgia separation agreement bind the two parents who signed it. They do not bind the judge.
The Rule
In Barbee v. Barbee, 201 Ga. 763 (1947), the Georgia Supreme Court stated it plainly. Parties “may enter into a valid separation agreement, which would be binding as between them, and would regulate their rights and obligations inter sese; but when the welfare of children is concerned, the parents can not by contract so bind themselves as to foreclose the court from an inquiry as to what that welfare requires.”
The reason is that the children are not parties to the contract. As the Court put it, “[t]he welfare and protection of minor children, involved in proceedings of this nature, are the primary concern of the court. The children become wards of the court, looking to it for such protection and welfare.”
What the Court Can Do With Your Terms
In Barbee, the separation agreement expressly left out any provision for supporting the couple’s two minor children, while providing that the contract would be used as the jury’s verdict. The Court held the jury could “approve, disapprove, or modify” the terms affecting the children.
Amos v. Amos, 212 Ga. 670 (1956), states the same discretion more broadly. Where parties settle “the questions of alimony, custody, and support of their minor child, the court may in its discretion approve the agreement in whole or in part, or refuse to approve it as a whole.”
What This Means Practically
You can and should negotiate custody terms. Just understand what you are getting. A well-drafted agreement gives the judge a sensible arrangement to adopt, and judges frequently do adopt them. What it cannot do is take the question away from the judge.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!