The No Child Support, No Visitation Trap

Some parents get confused and treat child visitation as being conditional on receipt of child support; sort of like child support is a way of “purchasing time” with their children. When the payor parent (one who pays) fails to pay, then the payee parent (one who receives payment) may not allow visitation between the children and the payor parent. There are numerous legal consequences for this behavior by the payee parent and, more than likely, psychological consequences for the child who is denied visitation with the payor parent. Some of the legal consequences are as follows.

Pursuant to California Code of Civil Procedure sections 685.010, 685.020, and 685.030, missed support payments accrue interest at a rate of 10% per annum. Interest accrues from the date the installment is due if payable in installments, or from the date of entry of the judgment. In re Marriage of Damico (1994) 7 Cal. 4th 673 holds that the payee parent may not be able to collect on any arrearages owed if he or she actively concealed the child from the payor parent. Be aware of Damicoand what might happen to any arrearages owed if you are contemplating whether to deny the payor spouse visitation and to what extent. Based on some custodial arrangements, the payee parent’s denial of visitation may even serve as grounds for the payor parent to file a motion to modify, possibly even reverse, the current child custody and visitation orders and possibly even seek attorney’s fees and costs from the payee parent.

What’s the take home lesson if you are the payee parent? If you are not receiving support, do not deny the other parent visitation for all the reasons set forth above. Instead, try to find out why the parent is not paying and then consult with a family law attorney. The problem may be as easy to fix as filing a wage withholding order and serving it on the other parent’s employer. A wage withholding order will secure support payments directly from the payor parent’s monthly pay before the pay is received by the payor parent. If the other parent is self-employed, then a wage withholding order may not work. You may need more extreme measures and may need to file a motion with the court.

What’s the take home lesson if you are the payor spouse? Be aware that missed payments are accruing 10% interest and this interest is likely not discharge able in bankruptcy. When you die, it may even be taken from your estate. If you have a legitimate reason for failing to pay support, such as the loss of a job, then meet with a family law attorney immediately to modify the support order. You may not be able to modify if you deliberately quit your job to avoid paying support, so maintain your employment status carefully. According to the California Family Code and related case law, you may not be able to modify any support payments owed before the date your motion to modify support is filed; consequently, filing for modification of support as soon as possible is important to prevent unnecessary arrearages, and interest on these arrearages, from accruing.

     This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this newsletter should be acted upon without first consulting with an attorney. Should you have questions about the content of this newsletter, please arrange to discuss via a consultation.