Child custody disputes can come in many forms, foremost of which is in a divorce. Divorce can be a rather tricky thing, in some cases spouses will easily resolve custody issues and have long battles over property division. In other situations, spouses will easily resolve property disputes and have long battles over child custody. In either situation, a lawyer is most likely required.
Some frequently asked questions are:
Can a parent take custody of the child instead of making child support payments?
The answer to this question is probably yes, but it often is more complicated than it seems. Both parents must provide for the child, no matter which parent has primary custody. Child support is normally paid to the custodial parent for the benefit of the child. Legal custody can be changed, but only if the parents go to court to modify the previous child support order and establish a child support amount for the new noncustodial parent.
Is a noncustodial parent entitled to visit the child if he or she is not paying child support?
Yes, assuming that visitation was an additional order of the court.
Child support and visitation rights are separate issues. The court determines both and will usually order the noncustodial parent to pay child support and the custodial parent to make the child available for visits.
The custodial parent has a duty to obey the court order for visitation, even if the noncustodial parent cannot or will not pay child support. The court can enforce its orders against either parent, or both, depending on the circumstances.
What if the child’s noncustodial parent lives in another state?
The law requires states to cooperate with each other. The noncustodial parent is legally required to make regular child support payments, no matter where he or she lives. There are usually specific provisions made for visitation when a party lives further than 100 miles away, as well as occasionally geographic restrictions for the custodial parent moving the child out of a certain area. It is very important to consider these possibilities before making final custody determinations. If your carefully fought over visitation plan can be logistically invalidated by the other party changing locations, there is a potential risk down the line. This particular issue more than almost any other seems to get overlooked by parents trying to agree on visitation plans without the benefit of attorneys. If you are doing so, please keep this issue in mind!
What is the noncustodial parent gets behind in child support payments or refuses to pay?
If a noncustodial parent does not pay child support, he or she is subject to enforcement measures to collect regular and past-due payments. The attorney general’s office uses many techniques to enforce child support orders, including:
- requiring employers to deduct court-ordered child support from the noncustodial parent’s paycheck through wage withholding;
- intercepting federal income tax refund checks, lottery winnings, or other money that may be due from state or federal sources;
- filing liens against his or her property or other assets;
- suspending driver’s, professional, and hunting and fishing licenses; and
- filing a lawsuit against the noncustodial parent asking the court to enforce its order.
A judge may sentence a nonpaying parent to jail and enter a judgment for past due child support.
What happens if I am being denied my court ordered visitation, or I am considering denying court ordered visitation from the non custodial parent?
Similarly to when someone gets behind on child support, a judge can also enforce a contempt of court motion on anyone who is violating an order of the court, including visitation orders. This matter is more serious than most people give it credit for, largely because people don’t want to, or don’t have the resources to hire an attorney to protect their rights in this regard. However, the fact remains that doing so can open you up to potential jail time, just like violating any other court order can. If you feel that the circumstances are substantially different from when the order was made and you no longer think the visitation plan is appropriate, it is important to legally modify that plan rather than unilaterally creating a new one.
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