“Can I withhold visitation if child support is not paid?”
I hear this question a lot. Along with it, there are two related questions:
- Can I withhold child support if visitation or parenting time withheld?
- Can I hold a child over in an emergency in violation of a custody order?
The answer is found in an obscure statute that most attorneys are not sure exists: Statute O.C.G.A. 19-9-24.
I know most attorneys are unaware of it because I’ve prosecuted cases that should not have been able to be prosecuted if the opposing attorney knew about the statute. It is a short and concise statute with two provisions:
- A physical custodian of a child is not allowed to maintain any action for against the legal custodian of a child in regards to modification of child custody, modification of alimony, change of visitation rights or even any action for contempt of court so long as a child is being withheld from the legal custodian in violation of a custody order. In this case, the physical custodian could be a parent visiting the kids, and the legal custodian is the primary physical custody parent or joint physical custody parent.
- The same thing except the legal custodian cannot bring any of the above-named actions so long as visitation rights are withheld in violation of a custody order.
So Can I withhold visitation if no child support? Can I withhold child support if no visitation?
It’s important to note here that actions to modify or establish child support are not included in the prohibition. Further, you cannot withhold child support if you are denied visitation. The amounts of child support you owe will continue to accrue, and a garnishment action to collect on child support is not disallowed by this statute. (See Stewart v. Stewart, 287 S.E.2d 378)
This case showed that the term “alimony” does not include child support. And, if you are withholding visitation you cannot bring a contempt action for child support against the child support paying party.
This has tactical legal consequences. A non-custodial parent with visitation rights whose rights are being denied can file a contempt suit against the custodial parent withholding visitation. But that parent cannot file a counterclaim for contempt for failure to pay child support. They can ask for modification of the child support amount. That’s a very big thing in the likely outcome of the case. A counterclaim for child support arrears can be a significant defensive weapon in a case like this.
The short answer is no. If you’re withholding visitation because of no child support, your in contempt of court and this statute prohibits you from filing contempt against the person not paying. Conversely, you can’t stop paying child support if visitation or parenting time is withheld. It does create a prohibition for a contempt filing against you for failure to pay child support but does not change the amount of child support accrued.
This brings up another interesting question. What happens if the primary custodial parent runs off with the children and denies the other parent years of visitation and parenting time? During that time, no child support has been paid. Can the primary physical custodian parent who ran come back and collect back child support?
From the Stewart case above, a garnishment action and tax intercepts could be used. The paying parent could have their driver’s license suspended. But a contempt of court action could not be sustained against the paying parent. So, depending on the circumstances, you might have a possible defense to enforcement if the other child support collection methods are not effective.
What Happens in an Emergency?
It happens often when one parent holds the child from the other claiming the child will be harmed even if it violates a child custody order. Given the wording of the obscure statute cited at the beginning, it becomes a difficult issue.
The Georgia Supreme Court, in Hutt v. Hutt (296 S.E. 2d 549), decided a case under a similar statute that preceded the one we’ve been discussing in this blog. In that case, the father unilaterally picked up and removed their son because his mother was having an affair. The child disliked the situation and threatened to run away if his dad did not come and get him.
The court found that the dad could not maintain his action for change of custody absent an extreme emergency. This was not considered an extreme emergency.
From a practical perspective, the way we handle similar cases is to obtain affidavits, file an emergency motion, and ask for either an expedited hearing or an immediate temporary order pending a future hearing date if an expedited hearing cannot be scheduled. The Hutt case dealt with a different statute (that is now replaced), and different jurisdictional circumstances which means we can argue around the decision, but it’s still the best precedent for answering this question.
If you feel it’s critical to withhold children from the other parent to prevent imminent physical or emotional harm, you need to talk to an expert family law attorney immediately to plan how best to move forward.
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com