"If your spouse interferes with your visitation, are you entitled to withhold child support until you receive your court-ordered visitation?"
Although many people may believe this is true, the bitter truth is that if one ex-spouse prevents the other from seeing his/her child, the aggrieved parent must still pay child support. Child support may not be withheld because the spouse interferes with visitation rights.
Illinois family law, as well as that of other states, regards child support as a matter of public policy and therefore distinguishes between the needs of the child to receive financial support from a non-custodial parent and the non-custodial parent-and-child relationship. Child-support payments are viewed as the right of the child, whereas visitation is the right of the parent. It would be unfair to punish the child for the actions of the parents; therefore, withholding support is not permitted without the court's prior approval.
The child-support order is a court-ordered judgment and is enforced like any other judgment, meaning that it can only be modified or terminated by the court. Unilaterally, courts may disregard terminating or reducing a court-ordered child-support payment. Absent an agreement from the custodial parent, courts typically enforce child-support orders through the courts' contempt powers.
In Illinois, non-custodial parents should enforce their visitation rights through the use of the courts and police departments -- not by leveraging child support. Regardless of the actions of the custodial parent as to visitation, the needs of the child do not abate. The proper action and remedy for a spouse's interference with visitation is to document the interference each time it occurs, and then to return to the court to enforce visitation orders.
T. Paul S. Chawla is a divorce lawyer who practices family law in Illinois where he devotes 80% of his practice to litigation.
Certified Divorce Financial Analyst
Business Valuators / CPAs