This is a question that is raised frequently:  “Do I have to allow him to have possession of the kids if he is not paying his support?”  Some have said that the law should be changed to allow the Obligee parent (the one with the right to receive support) to deny access/possession of the children by the Obligor parent (the one obligated to pay support).  This blog is directed at stating the current law and the ramifications if the law is changed to allow the denial of access based on nonpayment of support.

Currently, the law under Section 153.001 (b) states that “[a] court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.”

An Obligee currently has a remedy:  file an enforcement action if the Obligor is delinquent for any period of time or contact the Attorney General (“AG”) to begin its proceedings.  Certainly, this process could be made easier than it already is which could alleviate the delay in going through the Attorney General’s (“AG”) office or the expense of hiring a lawyer.  There are probably several things that could be improved here that would help Obligee to receive funds sooner and alleviate the burden on the State.  Perhaps an improvement would be that there is a blanket no cost of court to the Obligee to file in the civil courts (in order to obtain a faster remedy than the AG’s office) or attorney’s fees are automatic at the time of Temporary Orders if there is a showing of nonpayment that is purposeful, etc.

Certainly, an Obligee could deny access (because of arrearages) and the remedy for the Obligor is file a motion for enforcement.  Now, we all know that courts frown on the denial of access as well as an Obligor’s refusal/failure to pay child support.  We strongly caution clients against denying access due to lack of support and instead encourage them to file an enforcement action or go through the AG’s office.

Preventing access because the Obligor is not paying support is (in my opinion) very problematic for the many what ifs and scenarios that could be imagined:

1. WHAT IF—the Obligor is laid off (in this economy this is not too hard to imagine) and although receives unemployment, it runs out and he/she is unable to find work (sounds hard to imagine but again, it’s a possibility).  Should in this case, the children not see their parent?
2. WHAT IF—the Obligor becomes disabled and although he/she attempts to collect social security, the attempt takes a year or more and therefore cannot provide support in the interim b/c he/she can barely provide for him/herself?  Should in this case, the children not see their parent?
3. WHAT IF—the Obligor is terminally ill, lost his job, doesn’t have time to file for unemployment, etc.  Should in this case, the children not see their parent?
4. WHAT IF—the Obligor has mental/emotional issues that do not rise to the level of affecting the children but prevent the Obligor from obtaining/sustaining employment?  Should in this case, the children not see their parent?
5. And there are probably a hundred more scenarios . . .

Just a consideration here, but if an Obligor does not pay BUT still takes the children pursuant to at least a standard possession schedule, doesn’t that help the Obligee out monetarily?  The Obligee doesn’t have to provide food, care, shelter, etc. for the time that the children are with the other parent.

Another consideration is, if there is an automatic suspension of possession, what happens if the Obligor IS so destitute that he or she cannot afford to hire a lawyer to reinstate his/her possession?  Should the children not see their parent with whom they’ve had a relationship because the Obligor cannot afford legal assistance?

I would fear the impact on children if they could not see their parent, not because of a true danger to the children, but because of money.  The impact on children could be severe—you could only imagine how awful it could be for little ones who have had a continuing relationship with their parent to suddenly not see him/her.  This truly, although I’ve written it last, is the most important, most severe, most dangerous impact if the law is changed to permit a denial of access based on nonpayment of support.

Of course, both parents should help to support their children.  And, of course, we need to hold Obligors accountable.  If/when we improve the system (as there are always improvements that can be made in any system), we need to make changes that benefit the little ones that are ones suffering the most through the conflict.