It is extremely frustrating for a parent to deal with unpaid child support. An increased burden to provide material support is thrust on the custodial parent without any consequences to the other parent that refused to pay. Frustration can turn to anger. Anger can create the desire to retaliate against the other parent, including the temptation to withhold parenting time from the other parent. Can visitation legally be held back from the other parent on the basis that child support is unpaid?
In the eyes of the State of Michigan, the payment of child support and the right to visitation are two separate issues. Parenting time is not just the right of the other parent without physical custody, but also the right of the minor children. Every child has the right to be given an opportunity to develop a meaningful relationship with each parent. Using the issue of child support to withhold parenting time can be very harmful to the children. A parent is not required to pay money to earn a relationship with his or her children. A child should not be punished for something they cannot control.
If a parent fails to allow parenting time to the other parent as required by court order, then the withholding parent can be subjected to the contempt powers of the court. A person who knowingly and intentionally violates a court order can be subject to a finding of contempt punishable by a fine up to $7,500.00 or up to 93 days in jail, or both. MCL 600.1715(1). In addition, the person in contempt can be ordered to pay the costs and expenses of the proceedings, including the attorney fees of the other parent if they had to bring an action to the court to enforce the order. MCL 600.1715(2). The fact that the other parent did not pay child support is NOT a defense to violating a court order for parenting time.
In addition to the possible civil contempt penalties, a person who withholds parenting time against against court orders can also be subjected to criminal punishment. An individual is guilty of parental kidnapping in Michigan, contrary to MCL 750.350a, if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 19.6):
- First, that the individual took or kept the child for more than 24 hours.
- Second, that the individual intended to keep or conceal the child from the parent or legal guardian who had legal custody or visitation rights at the time, a person who had adopted the child, or a person who had lawful charge of the child at the time.
The penalties for parental kidnapping, a felony conviction, include any or all of the following:
- A fine up to $2,000.00;
- Imprisonment for up to one year and one day in jail or prison;
- “A parent who violates this section, upon conviction, in addition to any other punishment, may be ordered to make restitution to the other parent, legal guardian, the person or persons who have adopted the child, or any other person having lawful charge of the child for any financial expense incurred as a result of attempting to locate and having the child returned.” MCL 750.350a(3).
A parent cannot unilaterally decide to modify a parenting time schedule. A motion must be properly filed in the circuit court where the original order was granted, the other parent must be given proper notice, and the judge must consider both sides of the argument before considering a change in any parenting time. Only the judge has the power to modify a court order.
This does not mean that the other parent failing to pay is off the hook. The obligation to pay child support is also a court order that, if violated, also subjects the non-payer to legal penalties. According to MCL 552.631, if a person is ordered to pay child support and fails or refuses to obey and perform the order, the recipient of support or the Friend of the Court office can commence a civil contempt proceeding against that person. Upon finding a payer in contempt of court under MCL 552.633, the court may immediately enter an order that does one or more of the following:
- (a) Commits the payer to the county jail or an alternative to jail.
- (b) Commits the payer to the county jail or an alternative to jail with the privilege of leaving the jail or other place of detention during the hours the court determines, and under the supervision the court considers, necessary for the purpose of allowing the payer to satisfy the terms and conditions imposed under section 37 if the payer’s release is necessary for the payer to comply with those terms and conditions.
- (c) Commits the payer to a penal or correctional facility in this state that is not operated by the state department of corrections.
- (d) Apply any other enforcement remedy authorized under this act or the friend of the court act for the nonpayment of support if the payer’s arrearage qualifies and the evidence supports applying that remedy.
- (e) Orders the payer to participate in a work activity. This subdivision does not alter the court’s authority to include provisions in an order issued under this section concerning a payer’s employment or his or her seeking of employment as that authority exists on August 10, 1998.
- (f) If available within the court’s jurisdiction, orders the payer to participate in a community corrections program established as provided in the community corrections act, 1988 PA 511, MCL 791.401 to 791.414.
- (g) Except as provided by federal law and regulations, orders the parent to pay a fine of not more than $100.00. A fine ordered under this subdivision shall be deposited in the friend of the court fund created in section 2530 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2530.
- (h) Places the payer under the supervision of the office for a term fixed by the court with reasonable conditions, including, but not limited to, 1 or more of the following:
- (i) Participating in a parenting program.
- (ii) Participating in drug or alcohol counseling.
- (iii) Participating in a work program.
- (iv) Seeking employment.
- (v) Participating in other counseling.
- (vi) Continuing compliance with a current support or parenting time order.
- (vii) Entering into and compliance with an arrearage payment plan.
According to MCL 552.637(1), an order of commitment must be entered “only if other remedies appear unlikely to correct the payer’s failure or refusal to pay support.” If the judge finds the county jail to be the appropriate punishment, then, according to MCL 552.637(4), the payer can be sentenced up to 45 days for the first adjudication of contempt and up to 90 days for a subsequent adjudication of contempt.
A person who fails to pay child support can also be subject to criminal charges brought by the prosecuting attorney or attorney general. An individual is guilty of criminal nonsupport if the prosecutor can prove all of the following elements beyond a reasonable doubt:
- First, that there is a court order that requires the defendant to pay support for his or her former spouse, current spouse or children.
- Second, that the individual appeared in the action or was personally served with notice of the action in which the support order was issued.
- Third, that the individual failed to pay support in the amount or at the time stated in the order.
A conviction for felony nonsupport is punishable by up to 4 years in state prison or a fine up to $2,000.00, or both. MCL 750.165(1).
If you are due child support but not receiving it, a knowledgeable family law lawyer can advise you of your rights and assist you in the best legal path to pursue. Please do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.