Paying Support to Visit One's Children

Visitation does not require payment of child support. Indiana does not even allow a court to require payment of child support before a parent can visit with their children. The following is from Farmer v. Farmer (Microsoft Word format), an Indiana Court of Appeals opinion from 2000:

...Specifically, Farmer contends that the trial court abused its discretion by conditioning his visitation rights upon the payment of child support and attorney fees. Farmer also argues that the trial court abused its discretion because it threatens to revoke his suspended sentence, which was imposed for failing to pay child support, if he does not comply with visitation and does not make payments toward attorney fees.

We begin our analysis by addressing the attorney fee issue. In its amended order, the trial court states that Farmer’s visitation rights will be terminated if he fails to make payments toward the judgment for attorney fees in favor of Feliciano’s counsel. In addition, the amended order provides that Farmer’s jail term for failing to pay child support will remain suspended as long as he makes payments toward the attorney fee judgment. Feliciano concedes that the trial court’s amended order with respect to attorney fees is erroneous. It was improper for the trial court to condition visitation rights and the suspended sentence for contempt upon the payment of a debt to a third party. See Rendon v. Rendon, 692 N.E.2d 889 (Ind. Ct. App. 1998) (holding that child support and visitation are separate issues and obligations); Pettit v. Pettit, 626 N.E.2d 444 (Ind. Ct. App. 1993) (holding that contempt is available to assist in the enforcement of money judgments only when the judgment is for child support, not for other types of debt). Those portions of the amended order are erroneous.

We now review the remainder of the trial court’s order. The problems with the amended order are two-fold. First, the trial court impermissibly conditions Farmer’s visitation rights upon the payment of child support. This court has held numerous times that a parent may not interfere with visitation when the non-custodial parent fails to pay support. Moody v. Moody, 565 N.E.2d 388, 391 (Ind. Ct. App. 1991); In re Truax, 522 N.E.2d 402, 406 (Ind. Ct. App. 1988), trans. denied. Similarly, we have held that a parent may not withhold child support payments even though the other parent interferes with visitation rights. See, e.g., Rendon, 692 N.E.2d at 897. The facts of these cases are somewhat distinguishable because they involve situations where one parent withheld child support when the other parent refused to permit visitation or where one parent withheld visitation when the other parent failed to pay support. None of those cases address a situation where the court threatened to terminate visitation rights if a parent did not pay child support. Despite these distinctions, however, the underlying principle espoused by those cases is still applicable to the case before us. Visitation rights and child support are separate issues, not to be commingled. See, e.g., Rendon, 692 N.E.2d at 897. A court cannot condition visitation upon the payment of child support if a custodial parent is not entitled to do so. See Moody, 565 N.E.2d at 391.

If there is a problem with visitation, then file a petition to modify parenting time. Check out this post here.

A non-custodial parent faced with a situation where the custodial parent withholds visitation due to non-payment of support can file a contempt citation. See my post here on enforcing parenting time. I will say that my experience is that when a parent who falls behind on support files a contempt citation to enforce parenting time, the other parent files a contempt citation on the child support issue.