The court system views child support obligations and child custody orders as two distinct and separate issues. Child support is generally ordered to a non-custodial parent to help support the child’s custodial parent in order for the child to be able to receive necessary care. Whereas, child custody orders are typically not withheld from either parent, absent abuse, neglect, or drug use, as the court believes that each parent has a natural right to see and spend time with their own child. Therefore, just because the non-custodial parent has not paid child support does not mean that the custodial parent has a right to refuse the other parent’s visitation rights.
The denial of visitation rights based on the absence of a child support payment is known as the frustration of child visitation rights. Essentially, a parent’s right to visitation is not contingent upon child support payments. Therefore, a parent, absent a court decree, may not frustrate those court-ordered, or natural, visitation rights. The only reasons that a parent may deny visitation rights might include:
- Fear of imminent harm
- Refusal by the child to visit the non-custodial parent
The refusal of a non-custodial parent to make child support payments, for whatever reason, does not allow the custodial parent the right to bar visitation in order to coerce the non-custodial parent into paying. The only way that a custodial parent may seek retribution is to petition the court. While this may result in back-pay of the child support payments, the court is unlikely to change the visitation schedule due to non-payment.
Similarly, a non-custodial parent may not stop paying child support due to the custodial parent’s refusal to allow visitation. For example, Rod and Marybeth have a court-ordered visitation schedule for their daughter Elizabeth. Marybeth will not allow Rod to visit with Elizabeth because she does not like his new girlfriend. Rod does not have any right to withhold child support payments just because Marybeth is denying visitation.
Child Support is a payment that directly affects the child. Therefore, withholding child support payments, or even visitation rights, will only hurt the child. The best way to enforce or restore your visitation rights is to seek assistance from the court. You may file a motion to enforce your custody order in order to protect your visitation rights. If you have been repeatedly denied visitation, you may also file a petition to modify your existing court order. The court may change the custody agreement if the denial of visitation is unwarranted. The non-custodial parent’s unwillingness to pay child support will also be taken into account when making any changes to the agreement.
The attorneys at Larry McCord & Associates, LLC have experience representing spouses in all aspects of matrimonial and family law litigation. The financial complexities in divorce cases can be overwhelming. Please contact Larry McCord & Associates, LLC at (631) 643-3084 to learn more about the firm’s services and approach to child support disputes.