This problem typically occurs at a time when communication between the parties is either about to break down or has already collapsed. The lack of communication can lead the parties to misinterpret each other’s motives or actions, resulting in an escalating spiral of retaliatory behavior, which in turn will only generate litigation.
The couple needs to sit down with a mediator, who can help them focus on what they and their children need in order to get on with their lives. Financial problems resulting from supporting two households may be contributing to this dispute. Or it may be that the parties are trying to push each other’s buttons.
In my role as either an attorney or mediator, I would recommend, for a variety of reasons, that this woman not withhold visitation. First and foremost, it would be contrary to the children’s best interests. Children need the stability of ongoing, predictable contact with both parents, especially at this stage when their lives are in a state of flux. It’s crucial that they not be exposed to open hostility between their parents or used as pawns.
Secondly, it’s not in this woman’s own interest to withhold visitation. A New Jersey court will not look kindly on a parent who, especially for financial reasons, violated a pendente lite order (a temporary order pending the litigation), agreement, or status quo concerning visitation. If she violates a visitation order, she may be guilty of interfering with custody – an act that can carry substantial criminal penalties. Furthermore, escalation is a dangerous game, not only due to the uncertain judicial response, but also due to the unpredictable spousal reaction. The spouse may “counter punch” by seeking custody or assuming an intractable position on other issues important to her. The more litigation escalates, the less money there will be for the parties and their children after the divorce is over and the attorneys are paid.
I would advise this woman to deal with her husband in a very straightforward manner by approaching him directly to rectify the problem. If he won’t go to a mediator, she would be better off taking him to court to enforce his support obligation than interfering with his visitation. A wage garnishment, in which a court order requires the husband’s employer to deduct the child support from his paycheck, may be available to enforce the support obligation. In New Jersey and many other jurisdictions, the court no longer considers garnishment a punishment for a delinquent obligor, but rather a standard means of collecting child support – unless the parties agree otherwise.
However, this woman shouldn’t take a decision to seek a court order lightly. It could bring retaliation. Every added step of divorce litigation diminishes the parties’ ability to control the course and cost of the litigation, as well as the terms of the final settlement. It could also further poison their ability to communicate.
In the long run, it will be in both of their interests, as well as in the children’s, to keep the lines of communication open. This will allow them to cooperate as parents after the divorce is over. Without a father to care for the children on a regular basis, the job of being a single mom is much more difficult. On the flip side, it’s detrimental to the husband if a custodial mom interferes with his visitation.
If I were his attorney, or if I could confer with him as his mediator, I would suggest to him that it is not in his self-interest to use non-payment of child support as leverage. Not only does his wife have remedies through litigation, but in New Jersey and some other states, he might be compelled to pay her attorney’s fees (as well as his own) for enforcing his obligation. Further, the more polarized they become, the more she will oppose whatever he seeks out of the divorce settlement, even terms she might otherwise agree to, in retaliation and for whatever leverage it gives her. Nonpayment of his support obligation may lead to the judge developing a negative opinion of him.
The husband might want to consider establishing a voluntary wage garnishment for child support to remove this as a source of contention. I would also encourage him to recognize that his failure to fulfill his child support obligations – which might be subject to modification – is not the way to express his dissatisfaction with the arrangements.
In summary, this couple is at a dangerous crossroads: mediation or litigation. The direction they choose will have an impact on their lives and their children’s lives for many years to come. A decision to seek out a mediator can help them sort out what is going on; focus on their needs, rather than their angry feelings; seek mutually advantageous remedies; maintain control over the professional fees incurred in the divorce and over the terms of the final settlement; and keep the lines of communication open, ameliorating a difficult situation. Unfortunately, the alternative of litigation, with its awful logic of escalation, is a choice that can carry long-term costs, financial and otherwise, for the divorcing couple and their children.
Douglas Schoenberg is an accredited divorce mediator (NJPAM), attorney, practitioner member of the Academy of Family Mediators in Summit, NJ.