Clients sometimes ask—since my ex is withholding our kids from visiting with me, can I stop paying child support? I understand the logical inference the client is drawing here. My ex is acting wrongfully, I am not seeing my kids, therefore the ex should be punished and they should support the kids since they have them 100% of the time. Wrong.
To understand why this is so, it is important to understand what is somewhat of a legal fiction. That is that child support is paid for the benefit of the children, is made to counteract disparities in income between parents so that children can be provided for but also experience a similar standard of living in both households, and is made in accordance with custodial timeshare. The more custody you have, the less you pay. The less custody you have, the more you pay. If you follow that logic, then if the other parent withholds the children from visitation—the child support obligation should actually be increased rather than decreased.
Like most of family law, this entire issue is resolved by statute. Under the California Family Code, one parent’s interference with the visitation rights of the other does not affect the duty of support. See Family Code §§ 3556, 4845 (b). Even deliberate sabotage of visitation rights does not justify withholding payment of support, although it may provide grounds for a contempt action, for modification of custody, or for other sanctions. Cooper v. O’Rourke (1995) 32 Cal.App.4th 243, 245 (Quoting Moffat v. Moffat (1980) 27 Cal.3d 645, 651-652).
So, if you ex is preventing you from exercising your custody rights, you can file a motion for contempt, attempt to modify custody, or request sanctions—but don’t expect your child support to be any different.
You may be receiving child support and you don’t think it’s enough. You may be paying spousal support but think your ex is actually making more now than at the time of the divorce. Before filing a motion to modify support, wouldn’t it be great to know how much money they are making—so you don’t waste your time or money? But, they will never give you their paystubs or tax returns, right?
California Family Code § 3664 authorizes requests for current income and expense declarations—after the judgment! It is suggested that these requests only be made once a year at most. The form created to facilitate this request is judicial council form FL-396. So, what happens if they ignore your request? Guess, what—there’s another form for that (don’t you love family law). If your Ex doesn’t cooperate, 35 days later you can file judicial council form FL-397 directly with their employer. The problem? There’s no real teeth to the FL-397, in that if the employer refuses to cooperate there is not much that you can do about it.
If your Ex refuses to comply with your FL-396 request and the employer fails to cooperate as well, you are setting yourself up for a great argument that the court should make your Ex pay your attorney fees—due to their lack of cooperation. However, you will have to file a request to modify support. Once the proceedings begin, if they again fail to submit complete income and expense disclosure documents, you can also ask for sanctions under California Family Code § 3667.
You may read this in horror. Is there no privacy? Any party paying or receiving support has a right to demand the other party’s tax information as long as that support order in place!
As Retired California Supreme Court Chief Justice Ronald M. George said, “Our court system increasingly has recognized that a judicial decree is far from the final word in a divorce; parental and fiscal responsibilities may last for many years.” Far from the final word is right.