In Katz v. Katz, the Appellate Division considered whether a father’s obligation to pay child support could be suspended because the mother interfered with his visitation.
The general rule is that under New York law a noncustodial parent’s access to a child and his or her obligation to pay child support are separate issues. The court can require a parent to pay child support and also deny the parent visitation. If a custodial parent refuses to allow the noncustodial parent access to the child, the noncustodial parent should petition the court for custody or visitation. If there is a custody or visitation order in place and the custodial parent does not allow the noncustodial parent access to the child as required by the order, then the custodial parent is violating a court order. The aggrieved parent should take up the matter with Family Court. The remedy is not for the noncustodial parent to simply withhold child support. If the custodial parent is willfully interfering with visitation, upon petition the court may suspend or even cancel the noncustodial parent’s obligation to pay child support.
In Katz v. Katz, upon the couple’s divorce, the mother was awarded physical custody of the couple’s children. The father was awarded visitation. The father was also ordered to pay child support in the amount of $10,000 per month. The father petitioned the court to suspend his obligation to pay child support because the mother was not permitting him to have access to the children as required by the custody order. He also requested a recoupment of the child support that he had already paid. In support of his petition the father alleged multiple incidents in which the mother interfered with his parenting time and denied him telephone contact with the children. The mother responded by filing a motion to dismiss.
In denying the mother’s motion to dismiss the father’s petition to suspend child support obligation, the court noted that it does indeed have the authority to suspend a noncustodial parent’s obligation to pay child support if it finds that the custodial parent has deliberately interfered with the noncustodial parent’s visitation rights. However, the court did dismiss the petitioner’s request to recoup child support already paid as it is against public policy to order the recoupment of overpayment of child support regardless of the reason for the overpayment.
It is clear from this case that although it is not permissible for a noncustodial parent to employ the self-help measure of withholding child support because of the custodial parent’s noncompliance with the visitation order, it is also clear that if the noncustodial parent petitions the court, the court may suspend support payments. If the custodial parent’s failure to follow the requirements of the visitation order is occasional or is not willful, the court is less likely to suspend child support. Instead, the court is more likely to reprimand the parent and warn him or her to follow the order.
It is important for both parents to remember that a child support order and a visitation order are both court orders that must be followed just like any other court order. And like any other court order, it is a crime to violate a child support order or visitation order. The remedy would be to petition the court for the appropriate relief.