Berman & Asbel, LLP

Beware of "Self-help" remedies to child support or custody problems can make bad problems worse

Whether it is the holiday season, beginning or end of the school year or any other time, disputes over child custody and child support can flare up most unpleasantly.  Sometimes, one is tempted to use "self help" remedies when frustrated by one's former spouse or the other parent of the children. Beware! Attempting "self help" in these cases can make a bad situation worse.  Following are some hypothetical scenarios of what can go wrong with self help and what are alternatives in the legal system. (The names are randomly selected and are not from real cases.)

Scenario 1 - Joe and Sue used to be married and have two children together.  The children live with Sue.  Joe has been paying child support under a court order but lately Sue has stopped allowing Joe to see the kids.  Joe feels that if Sue will not let him see the kids, then he should not have to pay child support.  Joe is thinking about stopping the child support payments until Sue lets him see the kids.  Is this a good idea?

The obligation to pay child support is enforceable whether or not Joe gets to see his kids.  If Joe stops paying support as per the court order, he could be subject to enforcement action - even being held in contempt of court and put in jail.    Joe can do something, however.  He can take Sue to court to ask the court to order that he get time with the kids.  If the court enters such an order and Sue fails to comply, then Joe could ask the court to hold Sue in contempt.

In Pennsylvania, child support and child custody orders are entered separately by different divisions of the court.  Generally, the obligation to pay child support is a separate legal matter from the right to have time with the children.  If you are having trouble seeing your kids, be smart and file a child custody action in court.  Never try to use withholding child support as a weapon - it will backfire.  A competent attorney practicing family law can assist you.

Scenario 2 - Bill and Lisa are the parents of a child and are no longer together.  The child primarily lives with Bill and Lisa is required to pay child support under a court order.  Lisa's hours at her job were cut and she can no longer afford her child support payments.  Can she just stop paying or pay less?
NO, bad idea!  The right way to handle this is that as soon as the loss of income happens, Lisa should file a petition to reduce the amount she is required to pay for support.  Child support is determined in Pennsylvania by a guidelines formula based upon the respective incomes of the parties and the number of children.  If Lisa can show that the loss of income was involuntary and that she is making reasonable efforts to replace the lost income, it is possible to lower that ordered payment.  Adjustments to support obligations, whether increased or deceased, are usually made retroactive to the date of the filing with the account credited or debited as required.

What if you really cannot pay and you are waiting for a court date?  If you really cannot pay the full amount, at least pay as much as possible.  In support enforcement actions, there is a better chance to stave off harsher punishment if the record shows there is at least good faith effort to pay as much of the order as possible and also to follow proper procedures to seek a reduction.  Never just ignore the problem.  A competent family law attorney can help you.

Scenario 3 - Rachel and George are the parents of two children.  Under a court order, the children mainly live with Rachel and they go to George two weekends a month and for vacations and various holidays.  Rachel is upset because she has noticed that often when the children come back from staying with George, their behavior is bad, they have not done their homework and they get to eat a lot of junk food.  Can Rachel just stop sending the kids to George until George shapes up as a dad?
NO!  A court order must be complied with.  The first thing Rachel should try is communication with George or even trying to get him to agree to counseling.  If that fails, Rachel must file a petition for a court order.

But what if there is really bad stuff going on and the children are in danger?  Sometimes there are situations where there is a clear danger to going back to the other parent.  When something like that happens, it is important to quickly file a petition to modify the custody order.  There are procedures to have emergency cases handled on an expedited basis.  In my experience, judges will look more favorably on someone who makes use of legal procedures promptly rather than simply deciding to not comply with the existing order.

The bottom line is that when your family situation has had court involvement and there is a problem, you need to work through legal channels to fix it.  Trying unilateral actions can make a bad problem worse.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

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