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Contrary to popular belief, child support and parental rights are two separate legal issues. It’s not uncommon to see a custodial parent withhold visitation rights until the non-custodial parent pays child support, but the practice is actually a major violation of a parent’s right to see their child.
Generally speaking, most child support orders are accompanied by a custody agreement. The custody agreement should address visitation rights for the non-custodial parent, and both parents are accountable for upholding the agreement. Failure to uphold the child support order would have no effect on the custody agreement.
In the absence of a custody agreement, a parent’s inherent right to be a positive part of their child’s life still applies. A parent may lose their visitation rights if he or she is determined by the court to be a threat to the child’s health and well-being, but not for falling behind on child support.
If you are a non-custodial parent and your former partner is violating your visitation rights, you should consult with an attorney to determine the best course of action. You may be able to handle the matter civilly by issuing a formal notice, or you may need to file a motion for a judge to review and enforce your custody agreement.
If you are a custodial parent and your former partner is behind on child support, there are better ways to collect unpaid child support than unlawfully withholding visitation rights. Arizona Child Support Services can initiate or increase wage garnishment orders, offset income tax returns, and even seize property. As punishment, the state can even have the non-custodial parent’s licenses revoked and pursue criminal charges with accompanying fines and/or jail time.
The law clearly states that a parent has the right to regular visitation and frequent communication with their natural and adopted children. The reverse is also true—every child has the right to regular visitation and frequent communication with both parents. Depriving a father of the right to visit and speak with his child robs both parties of their natural rights.
Furthermore, a parent has the natural right make important life decisions on behalf of their children. The legal definition of “important decisions” is a little grey, but it generally includes the child’s healthcare, schooling, religious affiliation, and general upbringing. As with the right to visitation and frequent communication, this right is also independent of child support status.
Parental rights may only be limited or stripped away by court order. In the best interests of the child, the court may do so if the parent is deemed to be an unhealthy influence in the child’s life. This includes abandonment (long periods of absence from the child’s life), neglect, domestic abuse, drug or alcohol dependency, and some felony convictions. Even then, the courts are generally remiss to completely remove a parent’s right to visitation and communication, so it’s more likely to mandate supervised visitation.
It’s worth noting that a parent may be able to sign away their parental rights in certain circumstances. Namely, when the other parent remarries, and their new partner is willing to adopt the child. However, the court cannot force a non-custodial parent to give up their parental rights just because the custodial parent’s partner wants to adopt the child—that decision lies solely with the non-custodial parent.
Child Support Obligation
Separately, every parent has an obligation to provide reasonable support for their natural and adopted children. In split household relationships, this obligation demands that the non-custodial parent provide financial support to either the custodial parent or to the state (if the custodial parent receives government assistance). You can reach a private child support agreement as part of a divorce decree, but most cases involve a separate child support order from the court.
Once the court issues a child support order, the agreement is binding on all parties. When a non-custodial parent falls behind on child support payments, the unpaid child support accrues as arrears (with interest and potentially state-imposed penalties). Parents with significant child support arrears may be allowed to settle the past-due balance with a lump sum payment, but only when doing so is in the best interests of the child.
Modifying a Child Support Agreement
Non-custodial parents who are behind on child support due to financial hardship, job loss, or disability may be allowed to modify their agreement and lower the child support obligation. This is a temporary solution in most cases, but when the disability or hardship is expected to persist long term it can be permanently reduced.
To modify a child support order, you’ll need to hire an attorney and file a motion for modification with the family court. You’ll have the opportunity to present evidence to support your request for modification, and the custodial spouse will also have the right to fight your request with evidence and testimony of their own. In the end, the court will made the decision that best aligns with the child’s needs while doing its best to avoid financial devastation for both parents.
What to Do If You Are Unlawfully Denied Visitation or Communication
The first step is to discuss your case with a family law attorney who has experience with child support orders and custody agreements. In the ideal scenario, you and your attorney can quickly resolve the issue with a formal warning letter informing your former partner of your parental rights. If that doesn’t work, a face to face meeting may be necessary.
If your former partner still refuses to allow visitation for unlawful reasons, your attorney will file a motion with the court to modify the custody order. Unless your former partner can provide evidence that your visitation and communication is not in the child’s best interests, the court will either choose to enforce the current custody agreement or issue a new custody order with greater visitation benefits for you.
Keep in mind, however, that appearing in family court to pursue a motion to modify custody will put you firmly in the crosshairs for child support enforcement measures, as collecting unpaid child support is still in the child’s best interests. If you can’t pay the child support arrears or reach a settlement agreement with the state collection agency, you may be subject to wage garnishment, asset seizure, income tax return offsetting, loss of state licenses, or criminal charges.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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