Child support is understandably a sensitive subject in
Family Law cases. When a custodial parent does not abide by court-ordered
visitation, the noncustodial parent often makes the grievance that because one parent
refuses to allow the other to have court ordered visitation, then the
parent who can't see his or her child should not be ordered to continue
paying child support.
Unfortunately, in these types of cases the noncustodial parent is frequently
out of luck. The order to pay child support is independent of visitation.
Family Code § 3556. The bottom line is that child support is for the benefit of
the child, not the parent. Whether or not one parent refuses to allow
the other parent to have visitation has no bearing on the fact that the
child in the case still needs financial support. Courts will always place
the best interests of children as the highest priority.
However, there are very limited instances when courts recognize that ordering
past due child support payments would be unjust, or inequitable. In cases
of concealment, courts may refuse to enforce child support arrearages.
However, in cases where the custodial parent simply interferes with visitations
child support is not forgiven.
There is a significant distinction between interference with child visitation
and concealment of the child and custodial parent. Understanding when
courts are likely to enforce child support orders requires an explanation
of the difference.
When a parent merely interferes with visitation or makes things difficult,
such as not allowing visitation for months or limiting the time that is
awarded to the noncustodial parent, child support obligations continue.
Moffat v. Moffat, 165 Cal. Rptr. 877 (1980).
Concealment on the other hand usually consists of the noncustodial parent
having no contact with the child or custodial parent due to the custodial
parent's active concealment, having no way to locate the parent or
child and being completely cut off from any form of contact by the custodial
parent spanning many years.
Even if a parent actively conceals the child for years, the noncustodial
parent will still be on the hook for child support if the child resurfaces
before reaching the age of 18 and reconnects with the noncustodial parent.
In Re Marriage of Comer, 59 Cal. Rptr. 2d 155 (1996).
Although this may seem unjust to the parent who is deprived of a relationship
with their child for years, ultimately the court recognizes that past
due arrearages and continued payments will still benefit the child. In
Comer, the custodial parent concealed the children from the noncustodial parent
for seven years but returned before they turned 18 years old. The court
rejected a concealment defense even though the children were adults when
arrearages were ordered. Additionally, the noncustodial parent in the
case was in telephone contact with the custodial parent. The court was
convinced that arrangements to deliver child support payments to the custodial
parents mother or father could have been made even though he did not know
the whereabouts of his children or the custodial parent.
However, Courts have refused to enforce child support arrears so long as
the noncustodial parent made reasonable attempts to locate the custodial
parent and children, and the custodial parent concealed the children until
after the age of 18.
In Re Marriage of Damico, 29 Cal. Rptr. 2d 787 (1994).
Continuing with this trend, a recent case,
In Re Marriage of Boswell,
refused to enforce the child support arrears even when the noncustodial
parent reunited with the minor child before the age of majority. In this
case the minor child was 16 when she was reunited with her father.
may now give aggrieved parents a leg to stand on when arguing a concealment
defense to child support arrearages.