Your ex can’t keep you from seeing your child if you are behind in child support. Courts are organized into separate family law categories: support, custody, and divorce. Child custody and child support are separate. Good or bad behavior in one does not affect the other. Your ex can’t withhold your parenting time if you’re behind in your child support no matter how much you owe or how far behind you’ve fallen.
There’s a flip side to that coin: you can’t stop paying child support because your ex isn’t letting you see your kids. Judges orders are supposed to be obeyed and two wrongs don’t make a right. If you violate an order, you won’t have a defense to bring up unrelated issue. In both situations, the remedy for violating an order is to file a petition for contempt.
Courts handle violations of these two orders, child support and child custody, much differently. Courts are much more aggressive in enforcing support orders than they are in enforcing custody orders. Child support enforcement units will sometimes act on their own without the support-receiving parent taking action, possibly after missing only one payment. And the hearings will be scheduled almost immediately, within days or weeks. In contrast, for a custody contempt petition, if you’re not seeing your children you might not get a hearing for several months or longer, and judges often don’t want to arbitrate disputes unless there’s a repeated pattern and deliberate violation of the order. The greater importance that courts place on child support contempt rather than custody contempt is related to financial incentives created by the federal government in Title 4 of the Social Security Act. I discuss this more in another video.
If you’re in a situation where your ex is keeping your child away from you because of your inability to pay support, you can do two things: file a petition to modify and reduce your support obligation and file a petition for contempt against your ex. The petition to modify is necessary if you’ve lost your job, had a pay cut, or became disabled from work. Act quickly, because in most states including Pennsylvania, your obligation will only be reduced as of the date that you file.
The petition for contempt for violating the custody order should only be filed after repeated, deliberate violations. If you’re going to file a petition for contempt, be sure to meticulously follow the custody order because the only way you can convince a judge to enforce an order is by filing it as well. Keep a careful record of the violations and any evidence that will help prove the violation. Prepare for the other parent to deny it. Write things down and keep a record. You will need to prove more than one violation and the hearing will be a relatively long time away. Don’t rely on your memory
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