Child support is critical to the health and financial welfare of children. Recently on our divorce forum a user asked, “If the father of my child refuses to pay child support do I have to let them see our child? He has not paid in two years, and I am not sure what else to do to get his attention.”
Child support and child custody- two different issues
Although states recognize that child support is critical, a father’s obligation to pay child support and his parental rights to visit his child are distinct and separate issues under state law. In fact, state laws have consistently held that parents, assuming there are no issues of abuse or the courts have not determined a parent is unfit, have a fundamental right to control, care, and custody of their child.
The courts also generally hold that having two fit parents involved in a child’s life is generally in the best interest of the child. Exceptions can exist, however, and all factors are reviewed by the courts prior to establishing a child custody agreement.
With that said, in most states, under most conditions, a father’s right to visit and have some type of custodial arrangement with their child is not contingent on whether or not he pays child support.
Establishing a custody agreement with the father of the child
Assuming these two parents in question were married, the right of the father to have custody or to visit their child should have been outlined in the divorce decree. The amount of child support awarded to the custodial parent is also determined at the time of the divorce.
Child support cannot be used as a bargaining chip by either parent. For example, you cannot refuse to pay child support if the mother withholds visits with the child, and she cannot refuse to allow you to see the child if you fail to pay child support.
What do I do to ensure child support is paid?
Just because you cannot use your child as a pawn to force your non-paying, ex-spouse’s hand does not mean you do not have legal recourse to ensure you get your court-ordered child support payments. In fact, you have several options.
First, if possible, talk to your ex-spouse. There may be a very good reason they have not paid child support, including a job loss or disability. If you and your ex-spouse are on good terms you may be able to negotiate a new child support agreement. It may, however, be a good idea to have a family law attorney review the agreement to ensure it is fair and meets the needs of your family.
If your ex-spouse has the money but simply refuses to pay, however, it may be time to return to court and ask for the court to enforce the child support order. The court has several legal actions it can take to force payment including:
- Wage garnishments
- Jail time
- Interception of tax refunds
- Property liens
- Seizure of driver, professional and occupational licenses
What if the mom withholds visitation from the father?
Assuming there is a custody order and the mother is withholding visitation from the father, the father has the legal right to take the mother to court for violation of the custody order. If the court finds in favor of the father, they will issue a motion to enforce the custody order. Failure to follow the custody order could result in contempt of court charges against the mother.
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