Do you have to pay child support if your child is concealed?

Do you have to pay child support if your child is concealed?

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. Boswell may now give aggrieved parents a leg to stand on when arguing a concealment defense to child support arrearages.