Child support and child visitation rights are two separate issues. A father has the obligation to support his child and the legal right to spend time with her. The fact that the father is behind on child support payments does not impact his right to child visitation. Child support is paid to the custodial parent, as legal guardian of the child, or to the state, as an interested party in the child's welfare. However, all payments are made on behalf of the child; therefore neither the custodial parent nor the state can waive the payment obligation. State laws govern how much a father needs to pay to take care of his child.
Child Support Calculation
Most states calculate the amount of child support a father owes based on the incomes of the parents. The state can modify the current child support obligation based on changed circumstances, financial hardship and increased custody over the child. A majority of states also offer debt compromise programs to reduce past due child support obligations. The father may contact the local office of child support enforcement to arrange a payment plan if he falls behind on child support payments. Child custody and child support laws vary by state. The mother of a child does not have the right to prevent a father from visiting or communicating with his child based on whether he has made his child support payments.
A father has a legal right to frequent communication and regular visits with his natural or adopted child. A father also has a legal obligation to provide financial support to his child. Both the father's rights and obligations are based on his parental status. Once paternity is established, a father is usually entitled to either sole or shared legal and physical custody of his child. A father does not automatically lose those rights because he fails to pay child support. However, those rights can potentially be lost for other reasons, such as the father's absence, abandonment, neglect or abuse of the child.
A noncustodial father pays child support to cover the child's needs that arise in his absence. If the child support is not paid, the child's custodial parent can turn to the state or legal system for assistance. Once the state is involved, it attempts to secure child support from the father. However, the state's involvement does not automatically result in a father's loss of rights to see his child.
Loss of Visitation Rights
A father may believe that he has lost all child visitation rights because he has not paid child support or that he has regained his child visitation rights because he resumes payment. However, child visitation rights are not based on whether a father pays child support or not. If a father has not legally lost his child visitation rights, he can seek court-ordered visitation. In some cases, unrelated to child support, a father can lose child visitation and child custody. For example, if a father is absent from his child's life for a prolonged period of time, this absence can be viewed as abandonment or neglect by the court. The court can terminate all his parental rights; the father would no longer have the right to child visitation or child custody.
Motion to Modify Custody
If a father wants to seek shared custody when the mother has sole custody, he needs to return to the same court that issued the original custody order and request its modification. He can also ask the court to modify the original child support order. If the father gains shared physical custody of his child, he becomes a custodial parent with potentially reduced child support obligations. As a result, the court may eliminate child support payments if both parents share equally in child care and expenses.