Can I pay less child support when my ex won’t let me see the kids?

Clients sometimes ask—since my ex is withholding our kids from visiting with me, can I stop paying child support?  I understand the logical inference the client is drawing here.  My ex is acting wrongfully, I am not seeing my kids, therefore the ex should be punished and they should support the kids since they have them 100% of the time.  Wrong.

To understand why this is so, it is important to understand what is somewhat of a legal fiction.  That is that child support is paid for the benefit of the children, is made to counteract disparities in income between parents so that children can be provided for but also experience a similar standard of living in both households, and is made in accordance with custodial timeshare.  The more custody you have, the less you pay.  The less custody you have, the more you pay.  If you follow that logic, then if the other parent withholds the children from visitation—the child support obligation should actually be increased rather than decreased.

Like most of family law, this entire issue is resolved by statute.  Under the California Family Code, one parent’s interference with the visitation rights of the other does not affect the duty of support.  See Family Code §§ 3556, 4845 (b).  Even deliberate sabotage of visitation rights does not justify withholding payment of support, although it may provide grounds for a contempt action, for modification of custody, or for other sanctions. Cooper v. O’Rourke (1995) 32 Cal.App.4th 243, 245 (Quoting Moffat v. Moffat (1980) 27 Cal.3d 645, 651-652).

So, if you ex is preventing you from exercising your custody rights, you can file a motion for contempt, attempt to modify custody, or request sanctions—but don’t expect your child support to be any different.

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