The courts have established that parental rights and child support are two separate legal issues. Parents have a fundamental right to be involved in the care, custody, and control of their child, and a parent’s right to custody and visitation doesn’t hinge on whether or not they’re paying child support.
The court’s primary concern is to protect the best interests of the child, and unless there are extenuating circumstances that endanger the child, it’s safe to say that more often than not it’s in the child’s best interests to have a healthy relationship with both parents.
If your former spouse or partner is not paying child support, there are better ways to enforce the child support agreement than unlawfully withholding visitation. The state can garnish their wages, intercept tax returns, place a lien on property, suspend driving privileges, and even file criminal charges. Withholding visitation may seem like a faster solution to force collection of unpaid child support but doing so places you in violation of the court’s custody order and in danger of potentially severe legal repercussions.
The Custody Agreement
When two parents separate, the custody arrangement that spells out parental rights is typically addressed in the divorce decree or a distinct court order. The agreement should discuss legal custody (the right to make important decisions regarding your child’s upbringing) and physical custody (with whom the child primarily resides).
Legal custody is usually granted to both parents, so that each parent has a say in important matters such as healthcare, religion, and education. Physical custody can be shared jointly, but in most cases, there is one custodial parent with primary custody and one non-custodial parent with visitation rights.
Once the divorce decree or custody agreement is signed, it becomes a legally binding contract for both parties. If the custodial parent refuses to allow visitation, the non-custodial parent can file a motion with the court to enforce the agreement. If the non-custodial parent repeatedly misses visitation appointments, the custodial parent could seek to amend the custody agreement and further restrict visitation.
Either way, failure to pay child support doesn’t constitute an infringement of the custody agreement and has no effect on the parent’s legal or physical custody rights.
The Child Support Agreement
A child support agreement may be addressed in the divorce decree, though it’s often covered separately in a distinct court order. In the agreement, the actual child support payments are determined according to the Arizona Child Support Guidelines. The Guidelines place a heavy emphasis on the needs of the child, the parents’ combined income, and each parent’s individual obligations to other children.
Once the agreement is signed, it becomes a legally binding contract that’s intended to last until the child turns 18 (or, if the child is still in high school, then until the child graduates or turns 19, whichever occurs first).
Again, the child support agreement is completely separate from the custody agreement. A breach of one agreement doesn’t necessarily constitute an infringement of the other.
Child Support Enforcement
If the non-custodial parent refuses to pay child support or is substantially behind on their payments, the law provides a variety of options to enforce the agreement and forcefully collect unpaid child support:
In most cases, the first option is to collect unpaid child support directly from the non-custodial parent’s paychecks. If there isn’t already a withholding order in place (many child support agreements include a withholding order to collect child support this way in the first place), the state can issue one to the non-custodial parent’s employer.
If there is an order in place, the state may be able to increase the withholding amount within the limits of the Consumer Credit Protection Act (65% of income if the parent doesn’t have any dependents, or 55% if the parent is supporting another family). If the non-custodial parent has a second job, the state may be able to garnish wages from that job, too, within the confines of the CCPA.
Intercepting Tax Refunds
If the non-custodial spouse is set to receive a refund for their annual income taxes, the state collection agency can intercept the refund and use the proceeds to settle unpaid child support.
If your former spouse or partner is remarried and files their taxes jointly with their new spouse, the tax return will likely be larger than if he or she filed individually, and you can potentially intercept the entire refund. However, the new spouse could file a motion to retain a portion of the refund if he or she reported income that year.
Placing a lien on the non-custodial parent’s house, condo, land, or vehicle may not provide an immediate return, but if he or she sells that asset, you are entitled to collect the value of the lien before they collect the proceeds of the sale. Similarly, if the asset is seized in a repossession or foreclosure, you are entitled to a portion of the proceeds when the property sells at auction.
As a punitive measure, the state can seize the non-custodial spouse’s driver’s license, commercial licenses, and professional licenses. This action is intended to force him or her back to the table to negotiate terms of repayment.
In severe situations, the state can file criminal charges for unpaid child support and seek a jail sentence. Similar to license seizure, this is a punitive measure that’s intended to demonstrate the seriousness of unpaid child support. It’s typically withheld as a last resort, after all other collection and enforcement measures have been exhausted.
Modifying a Custody Order
If the non-custodial parent repeatedly misses visitation appointments to the point that the child is being harmed by the parent’s abandonment, that may present sufficient grounds to modify the custody order. That said, doing so must be in the best interests of the child, not necessarily the parent’s.
To modify the order, you’ll need to file a petition for modification with the court. The court will schedule a hearing, and you’ll be required to serve notice of the petition and a summons to the hearing to the non-custodial spouse.
At the hearing, the judge will assess whether the parent’s behavior warrants limiting their visitation rights. Note that while it’s possible to reduce limitation rights, the court will only consider removing visitation rights entirely if the child is endangered by the non-custodial parent’s presence. Considering that, a full revocation of the custody order is highly unlikely.
On the flip side of the issue, if you are the non-custodial parent and you have been denied visitation in violation of your custody order, that doesn’t qualify as an excuse to stop making child support payments. Failure to pay child support places you in violation of the court order and is clearly not in the best interests of your child.
Doing so would put you at risk for serious enforcement measures, and possibly threaten your relationship with your child. The better option is to file a motion with the court to enforce the custody agreement. If the custodial parent continues to defy the court order, their obstruction may be grounds to modify the custody agreement and rename you as the primary custodian.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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