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Visitation Interference May Result in Suspension of Child Support Obligation – Vasquez v. Powell, 111 A.D.3d 754 (N.Y. App. Div. 2013)


In this case the Family Court considered whether interference with visitation was a reason to stop paying child support and whether it would cancel child support arrears. The father was awarded custody of the child and the mother visitation. The mother was also required to pay child support to the father.  She complained that the father was not complying with the visitation schedule.  She argued that she should not have to pay child support if she was not getting access to the child as outlined in the custody order.

The court takes interference with visitation very seriously. When the court issues a custody order, both parents must follow it.  This means that the custodial parent must deliver the child to the non-custodial parent at the time and place agreed upon.  Willful failure to do so is illegal.  If this happens occasionally, the court will likely only chastise the parent and warn him or her to comply with the order.  If it happens repeatedly, the court will view it as willful and take steps to ensure that the order is followed.  One remedy may be suspending the obligation of the non-custodial parent to pay child support.

In Vasquez, the mother filed a petition to hold the father in civil contempt for violating an order of visitation.  As part of the relief sought, the mother requested that her obligation to pay child support be suspended.  She also requested that the court cancel her child support arrears.  While the court noted that it has the discretion to suspend child support payments for violations of an order of visitation, it also made it clear that the court would not have the authority to cancel arrearages.  It further noted that in this case there was no evidence that the father actively interfered with the mother’s visitation.  The evidence showed that at times the child did not want to take advantage of the scheduled visitation, and the father did not force the child.

It should be noted that the primary issue underlying Vasquez appears to be the fact that the mother voluntarily left her job and as a result may have been struggling to pay child support.  In addition to petitioning the court to hold the father in violation of the visitation order and requesting a suspension of her obligation to pay child support, the mother also petitioned the court for a downward modification of her child support obligation.

The court noted that a loss of employment may be a reason for the court to grant a downward modification in a child support obligation.  However, the loss of employment must be involuntary, and following the loss the parent must make a diligent effort to find a new job.  Further, in order for the child support obligation to be reduced the parent must first petition the court and the court must issue a new order requiring the lower payments.  A parent ordered to pay child support cannot simply stop paying or pay less than ordered because circumstances have changed.  The parent must petition the court to lower the payments. In the meantime, the parent is required to continue to pay the amount required in the existing order.

In this case the mother did none of the above.  She left her job voluntarily.  She did not look for a new job.  She did not immediately petition the court and receive a new child support order.

On the other hand, the father filed a petition to hold the mother in contempt for failure to pay child support. His petition was granted.

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