MY EX-SPOUSE WON'T PAY CHILD SUPPORT. DO I HAVE TO GIVE MY EX-SPOUSE PARENTING TIME?

By: Dawn Wellman May 2014

One of the most commonly asked questions in my practice as a family law lawyer is "can I withhold parenting time because my ex-spouse is $6,000.00 behind in support?" My easy answer always is No. It may make little sense to the parents to whom I make the statement, but the right to see one's children has nothing to do with whether you are paying support or not. If the custodial parent continues to withhold parenting time despite the fact that the ex-spouse is not paying their support, the custodial parent can also be held in contempt for failing to provide parenting time to the other parent.

In the 2013 Parenting Time Guidelines, it specifically sets out reasons why a parent cannot withhold parenting time. As noted in the commentary to Indiana Parenting Time Guideline C(1):

"Parenting time is both a right and a responsibility and scheduled parenting time shall occur as planned. Both parents are jointly responsible for following the parenting time orders. A child shall not make parenting time decisions. If a parent is unable to provide personal care for the child during the scheduled parenting time then that parent shall provide alternate child care or pay the reasonable cost of child care caused by the failure to exercise the scheduled parenting time."

Judges lecture parents all the time that they should keep their children out of the middle of their disputes about parenting time. Kids should not be making the decisions. It should be the parents. I often have clients who will call their ten (10) year old to find out if they are coming for the weekend. According to all the Judges that I practice in front of, that is not acceptable. The communication must be with the other parent.

I can hear you screaming now, "but I can't talk to him or her." Use email, text or an intermediary, but the communication must be made by parents. As noted in the commentary:

"Parents share joint and equal responsibility for following parenting time orders. A child shares none of this responsibility and shall not be permitted to shoulder the burden of this decision."

As I indicated earlier in this article, the Supreme Court approved the new Guidelines in March of 2013 and set out an entire list of unacceptable excuses for denying parenting time. They are as follows:

  • a. The child unjustifiably hesitates or refuses to go.
  • b. The child has a minor illness.
  • c. The child has to go somewhere else.
  • d. The child is not home.
  • e. The noncustodial parent is behind in support.
  • f. The custodial parent does not want the child to go.
  • g. The weather is bad (unless the weather makes travel unsafe).
  • h. The child has no clothes to wear.
  • i. The other parent failed to meet preconditions established by the custodial parent.

Judges do not tolerate parents that don't follow their orders when it comes to allowing parenting time. Repeat offenders can be dealt with very harshly. There are cases where parents are put in jail, ordered to pay attorney's fees, and even custody can be modified for a repetitive practice of withholding parenting time.

If you really believe that you have a legitimate reason for not sending the child, you need to contact a lawyer and determine if a Petition to Modify Parenting Time can be explored. There are sometimes very good reasons for not sending children, but it is not up to the custodial parent to withhold. It is always up to the Judge. Therefore, the better practice is to seek legal counsel and see if there is a way to modify the parenting time that would be in the best interest of the children. If you want to discuss a modification, please contact our law firm at (317) 462-3455.