Does a father who has never paid child support have visitation rights?

Child custody and child support are the two most contentious issues following a divorce. Recently on our legal forum a user asked, “If the father of my child has not paid child support in over two years am I legally obligated to allow him to see the child or can I withhold visitation until he pays all the money he owes me?”

Child support vs. Child Custody

Child support is important to the well-being of every child. Not only is it used to pay for clothing, housing, food, and medical care, it can also help ensure that the child’s standard of living after a divorce is comparable to what it was during the marriage.

So what do you do when the father of your child refuses to pay the child support? Unfortunately, withholding visitation rights is not the answer. In fact, states have determined that a parent’s right to visit a child is a distinct and separate issue from whether they have or have not paid their child support.

Courts have consistently ruled that both parents, assuming they are not determined unsafe or unfit to see their child, should have the right under a pre-established child custody agreement to some level of care, control, and custody of their child.

The amount of care, control, and custody is generally determined at the time of divorce and established formally under a child custody agreement. If you and the father of your child do not have a specific custody agreement it may be time to go to court and ensure the best interests of your child are protected.

Determining child support payments

As mentioned above, child support enforcement is separate and distinct from child custody. If the parents were married and get divorced child support payments are also generally determined at the time of the divorce. Most states have fairly strict formulas for calculating child support, although some states may allow judges some leeway in the calculations.

Regardless of whether child support is paid, however, it should not be used as a bargaining tool between parents, with one parent withholding visitation until they receive their payments or one parent refusing to pay until they get to see their child.

If you are not getting the child support you deserve (as outlined in the child support arrangement), it is time to seek legal recourse.

How do I get my child support payments?

Family experts suggest there are several steps you can take to try to collect child support. Some ex-spouses may have a fairly harmonious relationship post marriage and can simply sit down and hammer out an agreement.

If payments have not been made because your ex was sick, disabled, or they lost their job, may be you can agree to a lower payment until he is back on his feet and able to pay. 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.

Unfortunately, many spouses cannot negotiate child support issues on their own. In this case, if your ex simply refuses to pay and they do not have a good reason, it may be time to take him to court and ask for the court to enforce the child support order.

All states have an agency which is responsible for collecting child support payments. For example, in the state of Texas, the official child support enforcement agency is the Child Support Division of the Attorney General's Office. This office has the authority to take specific legal actions to ensure you get the money you are owed including the following:

• Wage garnishments
• Fines
• Jail time
• Interception of tax refunds
• Property liens
• Seizure of driver, professional and occupational licenses

What if I do not let the father see the child?

If you have a valid child custody agreement and you decide to violate the order by withholding visitation from the father, your ex has the legal right to take you to court for violation of the custody order.

If the court issues a motion to enforce the custody order, but you decide to ignore the motion, you can be charged with contempt of court. Consider also, if the violation becomes serious enough the authorities could eventually initiate a criminal proceeding against you.

Bottom Line:

Whether or not your ex decides to withhold child support payments this is a separate issue from child custody. Do not withhold visitation for child support non-payment. Instead, contact the proper entity in your state and find out what you can legally do to enforce the child support order and get the money you need to care for your child.