Two “Wrongs” Don’t Make a “Right”

By: John R. Coleman, Jr. & Natalie V. Teston

Coleman, Chambers and Rogers, LLP
January 2, 2014

Q: Can I withhold visitation if the other parent is withholding child support?

A question we are frequently asked by our clients is if the withholding of child support by one parent alone justifies the withholding of visitation by the other parent. We are also asked if the withholding of visitation by one parent alone justifies the withholding of child support by the other parent.

The unequivocal answer to both of these questions is "No".

The duty to pay child support and the duty to allow visitation are two independent obligations. The violation of one duty does not in and of itself justify the violation of the other. Moreover, if the violation of the obligation to pay child support or allow visitation is in defiance of a court order, the violation constitutes contempt of court. There can be severe penalties for being found in contempt of court. A party found in contempt can be forced to pay the other parties' attorneys fees. A party in contempt of court for failure to pay child support can even be incarcerated until the child support arrearage is paid in full.

When determining custody, judges are allowed to look into which parent is more likely to encourage and facilitate a meaningful relationship between the child and the other parent. This means that a party who has withheld visitation can suffer negative consequences in a custody dispute. Judges can also look at which parent is more likely to provide the child with food, clothing, medical care and other necessary basic care when determining custody. A parent who has refused to provide support can thus also suffer negative consequences in a custody dispute.

If you find yourself in a situation where the other parent is either refusing to allow visitation or pay child support, the best thing you can do for your case before coming in to see us is to go back through your records and compile an easy-to-read spreadsheet detailing what specific visitation was missed or how much child support has been paid. These organized records will help us to hit the ground running in drafting the necessary paperwork to begin your action.

Georgia courts favor legitimation and the establishment of close relationships between children and both of their parents. Georgia courts also strongly enforce custodial parents' rights to child support in looking out for the best interest of the child. Too many times parents withhold visitation or child support in an attempt to control the other parent. If a judge gets the impression that one parent is using the child as a pawn in a game of control, this can have devastating consequences for that withholding parent.

Of course there are certain circumstances that may justify the withholding of visitation. For example, if you believe physical, mental or emotional harm will come to the child if he or she is allowed to visit with the other parent, this can be grounds for withholding visitation pending an emergency court hearing to establish a new parenting plan. At the hearing the withholding parent should be able to clearly articulate the reasons for not allowing visitation to take place. Supporting this position typically requires a great deal of evidence in the form of documents and witness testimony to succeed at trial. As such, this course of action should only be pursued in extreme situations.

In situations where there is no existing child support order in place, a non-custodial parent who has concerns that the custodial parent is not using child support for the benefit of the children has options aside from completely withholding financial support. Pending a court hearing to resolve the issue, non-custodial parents can provide support in a manner that is sure to benefit the child. For example, in lieu of cash or a check, giftcards to grocery stores, diapers, formula, clothing, school supplies, and other items that are sure to benefit the children could be given as an alternative form of support. These options help the non-custodial parent receive "credit" for financially supporting the child prior to the establishment of an order on child support.

Please give us a call or email today to set up an appointment if you find yourself in a position where child support or visitation has been withheld from you or you feel that withholding traditional child support or visitation is justified. We will take action immediately to force the other parent to the negotiation table or in the alternative, to the courtroom to get you the support and parenting time you deserve.

About the authors: John R. Coleman, Jr. and Natalie V. Teston are attorneys with Coleman, Chambers and Rogers, LLP, in Gainesville, Georgia. The law firm of Coleman, Chambers and Rogers, LLP regularly handles all types of domestic relations actions. The firm has handled and can handle domestic relations cases in numerous counties, including: Hall County (Gainesville), White County (Cleveland), Lumpkin County (Dahlonega), Gwinnett County (Lawrenceville), Dawson County (Dawsonville), Habersham County (Demorest/Cornelia), all of Northeast Georgia and throughout the State of Georgia.