As always, prior to reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
"You can't see your son until you pay your child support!" I cannot count the number of times I have seen that line or something similar to it show up in e-mails given to me at a consultation. Of course, I've also seen the opposite - "You didn't let me see my son, so I'm not going to pay my child support!" For whatever reason, many people have the idea that child support and visitation are related - that if the non-custodial parent doesn't pay, he doesn't get visitation, and if the custodial parent refuses visitation, the non-custodial parent doesn't need to pay child support. This could not be further from the truth, and if you try to act on this belief, you could get in serious trouble. You could even face jail time.
In today's post, I will discuss how and why child support and visitation are unrelated (with a big caveat), and the proper way to handle unpaid child support and denied visitation.
Decoupling Support and Visitation
It's easy to understand why so many parents think support and visitation are related. For one thing, when these things are initially set, they are related. Specifically, a parent who is refusing to pay support is less likely to get a whole lot of visitation, and a parent with a lot of visitation will frequently have a lower support order (see my post on calculating child support to explain, for example, how shared custody support is calculated). Nonetheless, once the original support and visitation orders are entered, the relationship ends.
The reason for this is because both visitation and support are really the right of the child, not the parent. Child support is the embodiment of the child's right to be supported by both parents. Visitation is the embodiment of the child's right to have a relationship with both parents. A person should not lose his rights just because of what someone else did. Thus, the child should not lose his right to support just because the custodial parent denied visitation, nor should the child lose his right to visitation just because the non-custodial parent refused to pay support. The violating parent has infringed on the child's rights, not the other parent's rights, and as a result, it is not the other parent's right to retaliate.
What to Do When the Non-Custodial Parent Doesn't Pay Support
So, what do you do if the non-custodial parent isn't paying support? Well, if you don't have a court order for support already, you need to get one. Otherwise there really isn't anything you can do. If you do have a court order, you need to file to have the other parent held in contempt of court. The other parent can then be ordered to pay you his arrearage, interest, and penalties. Further, the other parent could be sent to jail, or have a suspended jail sentence to hold over their head to force them to pay. They can also have their driver's license suspended, and their passport revoked. What you cannot do, however, is withhold visitation.
What to Do When the Custodial Parent Withholds Visitation
So, what do you do if the custodial parent is withholding visitation? Well, like above, if you don't have a court-ordered custody/visitation arrangement, it's time to get one. The other parent's refusal to give you visitation can be used against them when trying to get a favorable schedule. If you do have an order, again, you need to file to have the other parent held in contempt of court. The other parent can be fined, forced to pay your attorneys' fees, or also sent to jail. The other parent can also be ordered to give you "make-up" visitation time. Finally, you can also use the other parent's refusal as a "material change in circumstances," and try to get custody yourself. What you cannot do, again, is withhold child support.
What Happens If You Do it Anyways
So, say you've read this post and decide to ignore what I say here and retaliate for unpaid support with withheld visitation or retaliate for withheld visitation with unpaid support anyways - what can happen? Well, the other parent can do exactly what I have listed above. If you don't pay support or you withhold visitation, the other parent can have you held in contempt of court regardless of his or her own contempt. This can be especially devastating for a custodial parent, since the ultimate result could be the loss of custody altogether. Is that really a risk you are willing to take out of spite?
Conclusion
If the other parent of your child is failing to pay child support or withholding visitation, don't retaliate by withholding visitation or refusing to pay child support yourself. Hire an attorney and have them held in contempt of court. If you are involved in such a situation, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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