Can I Withhold Child Support if the Kids Aren’t Back on Time?
Picture this scenario: You and your former partner are divorced and have a parenting order in place. You also pay child support in accordance with a child support agreement. For the past three months, your former partner has dropped the kids off to you much later than allowed under the parenting order. The lateness ranges from fifteen minutes to two hours, and has forced you to miss appointments, change plans and has generally led to quite some uncertainty about how and when the children are returned to you. Every time you try to talk to your former partner about it, there is hostility and arguing.
You are frustrated beyond belief. It is unsettling for the kids, you are unable to make plans, and you feel that your former partner is deliberately being late because of the difficulties it causes you.
What do you do?
You believe that you can only get things back on track by withholding child support payments, because you pay the lion’s share. The question is, can you do so?
The basics
The underlying principle of child support payments is that parents have a fundamental duty to support their children, not just emotionally and intellectually, but also financially. In other words, the parents are responsible for maintaining their own children, regardless of whether they live together or apart.
Once child support has been assessed and agreed upon by the parties, the only way for the payments to be changed is for the parties to make a new agreement. Where no written agreement exists, a party must apply to the family court for an order varying the current arrangements.
Issues
Withholding child support may have a significant and ongoing negative impact.
First, simply withholding child support without going through the proper channels casts you in a poor light in the eyes of the family court and the Child Support Agency (CSA). Even if you repay the funds later, you may find that this conduct becomes relevant to other applications or matters before the court or CSA, and these bodies may even take your prior conduct into account when making future decisions about child support or parenting orders. This could be very damaging to you and your relationship with your children.
Second, your former partner may find ways to highlight this conduct in any future applications to the court. Even if you believe it would not be relevant to other matters, your former partner may think otherwise and rely on your conduct to support their cause.
Finally, the purpose of child support is to provide for your children. Withholding support as a punitive measure against your former partner may lead the court and the CSA to conclude that you have failed to act in the best interests of your children. This may influence any subsequent parenting or child support orders.
Enforcement
Should you withhold child support, your former partner may issue enforcement proceedings against you in the form of an application to the family court to order you to pay the outstanding sum. The application may be made on the basis that your withholding of the money was a disproportionate response to your former partner’s regular lateness.
The CSA may also impose late payment penalties, requiring you to pay a fine as well as the sum already owing. You may also be out of pocket with legal fees.
Withholding child support payments is indeed a very risky course and should always be avoided.
What to do?
All of this information may save you from making a decision that you may later regret, but the problem remains. What can you do about your former partner’s lateness?
When the court makes a parenting order, every person who is affected by that order must comply with it. If drop-off times are specified in the order, then your former spouse is breaching the order by failing to adhere to those times. If the problem has been regularly occurring for a long period of time, it would be reasonable to apply to the court for a contravention order.
If the court finds that there has been a contravention without a reasonable excuse, it has the option of imposing a range of measures, including payment of your legal fees, attendance at a parenting program, or temporarily adjusting the arrangements to allow you to make up for the time lost when your children were not returned to you on time.
Where there is no parenting order, you may wish to consider applying to the court to have one put in place. The order should clearly specify how drop-off and pick-up times are to be managed.
In either situation, you should proceed only after seeking advice from a family law firm, as there are many complexities to be considered.