Family Law

Failure to Pay Child Support Does Not Justify Denial of Visitation

By Ben Stevens

Question:  I am currently behind on child support, and my ex-husband tells me I can't see my son because the Court Order states that my visitation is at the discretion of the father and since I remarried outside of our race I can't see him.  I have already served a six month sentence for being behind on the child support and I am now even more behind.  I don't have a job, but I am trying to attend college classes so that I can get a good job to support my son.  What can I do?

Answer:  The Court typically views child support and visitation as separate issues, and the failure to pay child support doesn't mean that visitation can be denied.  The problem in your situation is that there is no set visitation and it's at his discretion.

Your best course of action here is to bring an action to have the visitation specified, so that you will have a set schedule which will allow you to visit.  If he then denies your visitation, you can use the Court's contempt powers to enforce the Order. 

His attempt to deny visitation based upon your marrying "outside of your race" will certainly not hold up, as the Court will not endorse his racist views or allow him to discriminate upon that basis.  In fact, if he makes this claim in the Court case, it is likely to alienate or anger the Judge, which will end up working in your favor.

In the action to have the visitation schedule set, you can also seek to have the child support recalculated based on your going back to school, and hopefully the Court will set an amount that you will be able to pay to avoid future contempt situations.

Full post as published by SC Family Law Blog on September 02, 2008 (boomark / email).