New York Child Support

New York Child Support/Visitation Connection

By Staff Writer

There is a widely held belief among the general public that, if a party is not paying child support, the other parent has the right to withhold visitation or, conversely, that if a party is being denied visitation, he or she has the right not to pay child support. Both beliefs are incorrect and, if acted upon, can have serious consequences.

The issues of child support and visitation are very different and usually unrelated. In New York child support and visitation are rights that belong to children, not parents. New York Child support is based upon the child's right to receive adequate financial assistance. The right does not belong to the custodial parent. Similarly, it is presumed that it is in the best interests of the child to have regular, meaningful contact with both parents. In recognition of this interest, the child has the right to visit with the non-custodial parent.

Once an Order has been entered by a Court, its terms are legally binding upon both parties. A parent who withholds visitation or who stops paying New York child support is violating his or her legal obligations and can be punished by the Court. It is not a defense to an allegation of a violation of visitation that the other parent was not paying child support. Similarly, a parent cannot claim as a defense to a support violation proceeding, that he or she was being denied visitation.

It a parent is found to have violated the terms of an existing Court order, the consequences can be very serious. Courts have changed custody, imposed prison sentences and issued financial sanctions against parents found in violation of existing Orders.

If you find yourself in the position where you are not receiving New York child support, or if you are being denied visitation, do not take the law into your own hands. Rather than "punish" the other parent, by withholding visitation if you have not received child support, or by denying visitation if you have not received child support payments, the proper course of action is to file a violation petition or motion with the appropriate Court. To do otherwise, will place yourself in legal jeopardy.

Having said all of the above, it is possible that under limited circumstances a Court will impose the remedy that you cannot yourself impose. For example, if a Court determines that visitation has been interfered with by a custodial parent, the Court can suspend New York child support payments. That does not happen very often and a Court would have to determine that the interference with visitation was serious and ongoing. One recent Appellate Court decision in New York stated that a custodial parent's "parental alienation" of the children from the non-custodial parent justified a suspension of New York child support payments until such time as the "parental alienation" ceased. Most Judges will not want to impose such a drastic sanction because of the effect upon the children if child support is not received. However, this is a possible remedy that you can seek from the Court. You simply cannot impose this remedy yourself.

It is not likely that a Court would suspend visitation as a remedy if New york child support payments have not been paid. However, the possible sanctions for a willful failure to pay child support include a sentence of incarceration. If the parent who has failed to pay support is jailed, obviously, their visitation rights will be affected.

The message to be taken from these rules is that you should enlist the aid of your local Court to enforce your rights to either visitation or New York child support. Do not attempt to fashion your own remedy to punish the other parent. If you do, you may find that you become the target of the Court's discontent.