Should Visitation Denial Affect the Obligation to Pay Support?
Ira Mark Ellman
Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
November 10, 2002
When parents do not live together, the relationship between their children and the parent with whom they do not primarily live is often difficult to establish or maintain. In some cases those difficulties may be exacerbated by the custodial parent's resistence to regular contact and visitation with the other parent, expressed through conduct that violates the judicial decree setting forth the custody terms. In other cases substantial impairment in the noncustodial parent's relationship with the child may unavoidably result from custodial-parent conduct that is both lawful and reasonable, such as justified relocation with a young child to a distant location to which the other parent cannot follow. At one time the support obligor might have stopped making payments in either situation, effectively undermining the formal legal rule requiring him to pay, but improvements in the enforcement of child support obligations increasingly exclude that form of self-help. Where impairment in the parent-child relationship arises from noncompliance with the visitation provisions of the custody decree, a possible response is its improved enforcement, but inherent difficulties in the available enforcement tools suggest that this response will always leave some cases unresolved. Nor will enforcement address the question in the relocation context.
Renewed attention is therefore appropriate to the question of whether formal relief from the child support obligation should be allowed in such cases. The legal doctrine is confused. On one hand the right of access and the obligation of support are both regarded as fundamental attributes of parental status, and typically arise and end together in the context of legal rules establishing or terminating parental status. On the other hand, in many states the law makes clear that one parent's obligation to pay support is not dependent upon the other parent's cooperation in allowing access to the child. The rule that the obligation to pay support and the obligation to permit access are not interdependent is also often surprising to the parents themselves, because it appears to violate the social norm of reciprocity. It survives in the law largely for two reasons, one procedural and one substantive. As a procedural matter parties are supposed to seek modification of an outstanding judicial decree they believe no longer appropriate, rather than ignore it and raise their substantive concerns only later as a defense to an action against them for noncompliance. As a substantive matter, courts assume that the continued payment of child support obligations are essential to the child's welfare, and they are therefore disinclined to reduce or end them as a remedy even if convinced of the custodial parent's improper behavior.
This article concludes that while both these procedural and substantive reasons are weighty, they do not, or need not, apply to the full range of cases in which the law denies reductions in the support obligation sought on visitation-denial grounds. The article also considers other reasons for enforcing support, and finds these additional reasons are also often inapplicable to the visitation-denial cases considered here. Carefully distinguishing among cases according to both the severity of the visitation denial, as well as the procedural posture, the article suggests changes in the legal rules that would in many cases satisfy the procedural objection. It also suggests two categories of cases in which the substantive objection will often be of limited relevance: cases involving the enforcement of arrearages where the children are near or beyond the age of majority, and cases in which the support obligee has remarried. It therefore concludes that the increasingly effective enforcement of the support obligation ought to be accompanied by recognition of a visitation-denial ground for reducing, suspending, or terminating it, in select cases.
This working paper is a draft of a chapter that will appear in The Law and Economics of Child Support Payments, edited by William Comanor, and expected to appear during 2003.
Number of Pages in PDF File: 49
JEL Classification: K39, K49
Date posted: December 18, 2002