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Child Support and Visitation: Comparing Apples and Oranges

Tonight's offering, "Child Support and Visitation: Comparing Apples and Oranges," is "penned" by our Atlanta counsel, Cherese Clark.

"If I do not get to see my child, then I should not have to pay support." A common sentiment of many of my clients in Fulton County and the surrounding metropolitan area. While theoretically the comparison may seem understandable, the law does not support this notion. Under Georgia law, the obligation to pay child support does not hinge on whether you are exercising visitation. Therefore, to put support and visitation into the same category is comparing apples and oranges because Georgia treats them as two completely separate entities that are not contingent on one other.

So what do you do when you are paying child support but are denied parenting time to see your child? Generally, there are two options. The first option would be to petition the court for visitation if there is not an adequate schedule in place. However, if there has been a visitation schedule ordered by the court, and the other party is not complying, then filing a contempt action is the proper legal avenue.

Withholding child support because of lack of visitation is a form of self help that is not supported by Georgia law. It is not a defense! Failing to comply with a support order may: 1) cause you to be held in contempt for violating a court order; 2) cause you to pay the opposing party's attorney's fees if he or she prevails on the contempt action ; and 3) warrant suspension of your driver's license or even incarceration.

Conversely, if you are having trouble paying your child support obligation, the custodial parent does not have a right to withhold your visitation with your child. Denying visitation because a parent is behind in support is not a defense, either. The parent due support needs to file a contempt action, rather than withholding visitation.

If you have a substantial change in circumstances making support payments difficult, do not avoid your obligation all together, you should file for a Modification of Child Support before you accrue arrears and you are facing serious legal consequences. 

Cherese Clark

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